HomeMy WebLinkAboutAgenda Bill 4.D Part 1 07/14/2003, 'CITY
OF PETALUMA CALIFO
Petallimai Community Deve'lo _merit C®anmis'sion
JOL,142003
AGENDA
AMenda "Title:
„eetmg;DIateJuly
14 20
03
lution Approving an iscussion andAction AdoPttngA Reso
1
weer Partitip4ti9p Agreement with 'Basin Street Properties Meeting Time: 3:00 PM
Downtown Theater' Dis r g „s In the
P, g
Finan of Capital Improvemen
t
g Ado hn a Mitigated Negative
nvo vin t e DC
t ict and , ,
' d),eclaration Thereon
:Cate 0 x New "Business;
Redevelopment Paul M Contac!!!Iini
e Number:
Departments, Director:
P arangella Paul M58'1Cost of Proposal $4 8MillionCost Number• -901-400=9016
unt,
Attachme udgeted, $4.8 Million Project Fund;
unt B
nts �to
Fund CBD
Ajenda,Packet Item:..
1. Resolution Parfcipat on A pteemenMWitightBasingative Declaration and,Appro ingan Owner
g,Street Properties ,
2. Owner Partici ,ation Agreement with Basin. Street Pro erties
Summary,;Statemefiy
The City of Petaluma receiu "'
` , , Project," � P g P application f B, St Street :.Pro ertie undertake a
Theatre District Project redevelo - in the P
received : a' develo menta lication from ',Basin s to , unde
E Petaluma Boulevard;
L e downtown area ,
South, o r,eet, East of
West: of the Petaluma River, and North of DF Street. Thea application also includes the redevelopment of the
st the
,West side of 1 Street, South. of D S (eet The proposed development is consistent, with recently
.,adopted Central Petaluma Spec- ific,Plan CPS'P' .
p several months City officials an'
Over that ast se d Basin Street Pro 'erties have y
p
ve met to considerTthe feasibility
mmiPssion PCDC the ro not be financially feasibl' e Petaluma" y opment.
t
e project— �t, was determined that withont: the assistance of th Coinmunit Devil
P j: t would y e it �,"
proposed project wou' ec g ificaht amount of bh ht��� istent further determined that the
PCDC s Central Busi nate (: si ri"
ro, osed eelopment Plan. The ro ect,w the objectives of the
g , :cons with
4 )Jed
__ p j ill provide: a substantial
irni
he CBD Redevelop
ness District CBD
enhancing tit 'increase in ro ert
benefit tot
the retail vitalit of therva ea,J'and creatib g adding,
d ibrantg24-hour use of .do ntowtax r erement,
g Y p n core. Inside
this contexwt, City official And Basin 'Street °Proerties have .de"termiried that a Development Agreement- and
P g ' nate for the ro ect ,The Agreem
Owner Pa sed developmen't'�of thereroperties in accordance with the ents will provide for the
orderly ha„p p objectives, established in the General
YP
Plan, the CBD Redevelopment Project; Area Plan, and the CPSP. Moreover; the' agreements will eliminate
g `, ject; ensure entitleme
maximum P g y p he Pro tit. of the
uncertainty in lannin . for andr secunn orderl develo merit for t
t ces
thin the City.
e �� icier utilization
of resour w.i
P pproving a Mitigated Negative Declaration and
There tier Pa
an Ow
P rP
Therefore,. the u ose of this,it'em is to ado. ,t a resolution a
rticipation Agre�ement v Jth Basin Street P,ro erti'es!
Recommended PCDC Action%Su ested M --tion:
It is,rrecornrnended�' - . ) P g g
that Y e PCDC I!AppgroComm ssoonti.oegard tido .the Mitigated' ed 7eptive Declaration with fthe
ed b the Planning ve Declaration, and 2.).
findings:, g,airecj O ener P'a ici.patton Agreement with Basin"Street Pro -`erti
g g pati
Rei iew,ed b Fina""rice D'ireetor: Reviered by Citi 'Attorn
a roe m an p es..
„ v
e-: A ro
Cita Manu er.:
Date: Date:
( 1°
��"
aN s ate
Revision # and Date Revised: Filei Code:'
l.el ill.. 'n„ .� •
1.
CITY OF'' PETALUMA .CALI
w Petaluflna Community Develo meat Co m s °fl
July 14; 2003,:;
AGENDA REPORT -
r
PARTICIPATION AGREEMENT' WITH BASIN STREETPR' OWNER
hADOPTING ON _A APPROVING, AN O
IDIS w TIES /-.
it 4 a `
A
- .. ... - GTI7l'E� PCD'l.
EN`i'S IN TIi'E� DOW n
FINANCING OF CAPITAL,, NTOWN TREATER DISTRICT AND
L� I1VIP�ItOvE_lVI
ADOPTING°A -MITIGATED NEGATIVE DECUARATIONTHEkEON
L. EXECUTIVE SUMMARY:
Cit
y f Petal Project,"' redeuelo mp -the downtown area .South of B Street Eto undertake a
"Th - p „g ,
T "Theatre Distract,
Petaluma, received a develo menta application, from 'B'asm Street Propertiesst of: Petaluma
Boulevard, West of the Petaluma.River; and North of D Street The. application also includes the
redevelopment ofthe West side of Is' Street, South of D Street.' The proposed development is consistent
with the recently adopted Cenfral Petaluma Specific Plan (CPSP).
Over thatast . several .months officials p , City . y and Basin. Street Properties have met to consider the
p assistance' of the., Petaluma Community
Devel
feasibility of the P mission (p as dj termiped that without thebe f_in
t�
t Com CDC, the ro'ect would not ancially feasible. It was further
p p p J sign
if. that the ro osed, ro ect•would, eliminate a si ifrcant amount�of blight, .consistent with the
ob'ectives of the PCDC's, .Central Business District (CBD) °Redevelopment Plan. ' `The project will
provide substantival benefit to
n theBD Red talito of the areaectanArea, by adding
vibrant�24cant increase in
pro ert tax increim _ _- reatin
n „w g Y _g,'hour use of the
downtown core. Inside, this co`nt'ext; City-officials, and, Basin, Sfieet,,Properties have determined that a
Development Agreement and' ;Owner 'Participation Agreement Arg,approphiatep for liheproject. The
Agreements wi'll provide for the orderly phased development of the,.propertiesn'accordance with the
J, eneral'Plan
the CBD Redevelopment; Project, Area Plan., and the CPSP.
ob' ectives established in the G ,
Moreover, .the agreements will eliminate ,uncertainty inplanning forrand' aecuri'g orderly development
for the project, ensure entitlement of the maximum efficient ti, &0frresou'rces within the City.
tem�;rs4-0. adopt a resolution approving
and an Owner Particc afiom A 1
'Therefore p rp a Mitigated Negative Declaration.
p , greement"-with Basn.Streef.:Properties.
., 2; Background:
Ment between
The Prpartac ... Draft Owner Participation Agree_ the: City of Petaluma and Basin Street
which'the,P tallurn theses onsbi'lities of each of the patties, the Cit andABasin Street Pro`pert'ies, under
Y
i'stnctProJect will be developed° In short �'the� agr p " hat
Y p utter, m t
the Crt will' be resa ons ble for g ( g
ee ent sti ulates
derground' tihty nfrast`ru t be,where n necessary,, and nstall ng,the improvements, outlined nedtalling
new .-un u n,the
making,,available7 o they . ublic me udin securityBand Tong-term terrri maintenan eble for"'constructing and
y treetsca e Master Plan: p p
p .p g g_ , a new 4-level parking
garage and other. ' im rgvements as detai-ledin the projecproposal. The specific details of this
agreen exit„and the; long -form res are contained. in Attachment 3.
Project Components
The Project ,consists of the following, all. to be undertakeir on the property.: in accordance with. the Master
Plan and ;the Conditions of Approval;:
• Cinema Project: The design, development: and construction on ,the Cinema Parcel of a twelve
".
screen, cinema'complex developed in -an "Art_Deco"architectural style; i
• Office ?koject The design, developand construction on the'Office Parcel ofa `5.0000 square
foot 3 -'story offite"building
• gParking
age containing e at Ieastd53.0 offstreetp parkiment ng a essmfour Ie truction n the: Garage Parcel of` a .parking
_ p-. g p _ : _ i .. f parking over' 30'00'0;square
vels o
feet Ofgroundl: floor commercials ace"
IVlixed U'se Pro ect The desi development and, construction on the
• ... _. _ Commarcel �of.a mixed
p . Mi 'ed Use
use pro ect consisting of 46 g ONQ s ware feet ound floor p ,.residential
J g q gr. rcial.s ace and 78
u ts in two buil, in s �formin n interior'courtyard
• Apartment Pro ect:,The design,development and. construction on the Apartment Parcel of a'one-
hundred eleven unity artment complex; and, �
•
Site- Improvements: The design, development and :installation of"related landscaping, and site
improvements.
Prowet Phasing,
The,projectwill be developed in phases; as follows:
j
,Phase A:. Cinema and; Parking g Gara e'
,.
1- Estimated, Commencement Date: November `l 5, 20Q1
I Estimate& Completion Date: November .1'5,:2004
Phase R: Riverfr.ontOfficeBuilding'(Bar:-Ale)
'I., ttiinated Commencement'Date �- May 11,2Q,04. -
2. :Estimated Completion Date: ,May 1, 20Q5
Phase C: Mverfronf.;Residential Apartments (IYYcNab)
1'. Estimated,Con mencement Date: May`1,, 2004.
2. Estimated Compl'et'ion Date: November 1, 2005
ard(.
buildingsR'ose). .
Ph Es m atRedSGommen'cemenDateA nl:Pe 2005 a Boulev ^'
P
2. :E'stiinated Completion`Date; December ;1,;2006 "
The construction of the: first portion..of the; project, will include; Phase A. ,Phases B; C ,and D"ma,occur -
.concurrently with Phase A, or in any order thereafter,: either separately or together At this' time, the. _
P p g g `urr'eritly. ,with Phase A, ,but the ultimate;
deers'
ion will be driven, by market, conditions, pre -lease act'
i atiri � con
structin Phases. B and. C cone
_ .ivity,, sand other, factors..Similarly;
eue o er is antic..
p g g �` p
developer rs. also, ;antici titin constructirr Phase D after Phases A ,Band:+C- haue been coin 'leted, but
the ultimate decisio_ n will be: driven b,' market .conditions' re-1`ease 'activity; and other fac`.tors,
ment Pro
Development posal
Thepro ro•ectis- locate
p p p j d within the:downtown of the City'rof°Petaluma ' Thesubject parcels of the
proposal are also, located within the boundaries of the Central Petaluma Specific Plan (CPSP). Portions
arcels are also located
of the subject p ° within the Downtown. Historic'Distr`ct, The subject properties are
either paved or contain buildings that inay be removed; -moved or saved;
v
pro 1p
he cinema site,
The
and 2 subject St Streets;,, Thee arcel e seurrentdl location
develo developed an existingisat
Boulevard . South,
„ �a
P y p g and associated paved
parking. renovated foihe e *'commercial alt of 'the e uses. formerA ortion of he ez stm '' The existing building is currently
being renov '
addition to, the ro osed the
J p g;:structure is proposed to serve as an
p p theater. subject parcel °s'�surrounded by, -other commercial uses and is
adjacent (east) to,a, new mixed=used,(residential/commercial) bui�lding�under construction.
The subject parcel for the ,proposed, mixed=use (residential/commercial) building, "located at Petaluma
y p auto odyL'shop, auto -detailing
g rth an, b
Boulevard South 'Dforn ont nuin education classes;'for adu1i
Streets;is currentl develo � ed w
shop,and is the location is The subject parcel is developed
with associated parking- for ,the; current uses and ;contains 5 bui dings; all of. which are' -to be: demolished.
The Petaluma Fire Stat on,is, to.th& east of the subject parcel;'; a vacant parcel'is to•the south across "D",.
and other commercial uses are°in the area.
The proposed parking structure/commercia o St II", 2"a, 1St ands "C" Streets is.
currentlydeveloped with an existing 1 'building to ,be located' 'at "D
truckingscales .and small scales buil I g � Y ( � , D , and, l ), which' is to be relocated„ the
, Station (corner
p ,which is to be' dem
fiver, stable corner of "hshed:� The Petaluma Fire,,,
a
m o,
"D" and -Street) Street) is adiacen to the', r', -sed parking structur'e., There is currently under construction a
mixed-usecommercial/reside
( ritial, Basin street Lofts) structure tg the.north of`•the'subjeet parcel.
burned down. This subject parcel is loc1.ated adjacent to th''Petalumuls.the;:. former Bar. Ale site; which
proposed Streets The ro
d office, buildm to be locate
E Sub a River (east), and;north of the PG
Substation. The parcel is "nearby commerciaUindustrial„ uses. Industrial uses are east of the
Petaluma River. -
adjacent, s the Petaluma ential/commercial) project on" .S` tween-l5t and '7' )
a proposed ( ver, _ � p Street is located
The ro ose nux
ed -use rest
east o rte is located near
H P f -the sub ect parcel.., The s
'Which ea old metal warehouses. With
the exception of one
warehouses, ,all are ,to bed see
commercial/indus yp elope with
of the `metal ( Attachment D;'Location. Map).
The.proposed' ptojeet (referred to as'the "Petaluma Theater Distnct?') will"be a mixed-use project'`
11 «' °» St
within. existing Downtown Petaluma. The osubj'ect parcel's are generally between , B C , D , 1 , 2nd,
and, "F" Streets; Petaluma Boulevard and the Petaluma River. The subject parcels. jare within the
boundaries;of,the'Central Petaluma Specific Plan (CPSP). Basin Street Properties:,(the project developer)
( ) ner Pa" p gr
is requesting approval of a Development Agreement DA and. 'an Ow rtici anon A cement
(OPA) with regard to the project. These agreements govern, among other things, the, timing of the
development of. the project, „funding and other obligationswith Basin Street Properties, 'the City of
Petaluma and the City of Petaluma Community Development Commission' (PCDC), -The project
proposal end' "meet to the City";s Zonin Ordinance that 'would establish a designated; area.
in the ro osalncludes° anam p g s :of the
mixed=use proposal will include a
rt where movie theaters are permitted. The main focu
new 12 -screen cinema and parking structure. Other uses within the proposal would allow for: national
office space• and, residential uses in the form of apartment and loft ,st le: g is ,e dining;
_ y g fin
rants focusing on both da ime food'' service as well . Below
anlocal.retailers; .restaurants
well as evenin
p c
descri tion;o
f each the "
" p blocks to'be developed within the proposed project boundaries: i i
Theater
A new 12-screen 1,400- seat theater building locatede south side of Basin Street' Town Center
(•formerly Victor ' ' Chevrolet) at the intersection of ,C , on t Street:and Petaluma Blvd; 'rfi&oncessions and
lobby for`this new theater will be aceessed•directly from "C"'Street:
Size: 22,720,square feet, 12-screen, 1,400 seat
Height:- 30 feet, equivalent height of 2 story building`:
Garage
A new parking-garage on: the: site surrounding;jfiee Fire. Station consisting of 4, suspended levels of
,parkingover 3,0` 000 s.f. of 'ground floor commercial _space; "Th'e ground floor space will face; .and.
Provide commercial "buildings frontage along 1 ,,:2 ,. "C"and "D'9 Streets. The proposed :development
will require the removal. of the existing truck scales and scales building. In addition, 'the existing livery '
stable at the ,corner of 1s' and "D" :Street; is proposed to be relocated'from its present ocafion to a site
...._
that:is appfoximately L000 feet,awdon the.easi side of the: Petaluma River:
Commercial Space Ground Floor.:: 30,000'square feet. (office;'xeta&or.commer"c al);
,
Height: 4,.suspended; levels at 50' feet, equivalent height: of 3:-story building
Total Parking Spaces: 530
Free Public Parking,&aces, '
143 Reserved Residential Parking Spaces
1.7.1 Reserved Coinmercial Parking ;Spaces
F
53.0 Total
Basin 'Street Properties wwill operate the Parking Garage seven days, per week from .6:00; a.m. to; 2:00 a.m.,
and wilLens ,,e ;that the Parking Garage -i s, "at all times maintained in good,'condition and perform all„
necessary •repairs: and_,rriainteriance atfi is sole expense.
T6eater'Square
A new mixed-use project on. the ,corner of Petaluma Blvd: and `°D" Street �(forn er Autowor-ld site)
`consisting of 46;000•square feet'of ground floor commercial space,facmg P'etaluma'Blyd "D" :and
2"d`Street and 76 residential units on the second-and thi p ludes. the removal of "
exsfin buildings.ori the,site rd floors. The roposal nc `
all ofthe g
Sizer 44;000 square) feet ground .floor commercial space
76-residential'units on 2"d and. 3rd
floors;'
Height: 3:8 to 40' feet, 3-story buildings;"
Wafea-front'Building • .
Anew 49 909 s'q uare foot 37sto rY riverfront commercial building located oi•the! forrrier`Bar Ale building'
t`e at, the .corner of 1'5`' and' "D" ;Streets. The architectural styling of this _view building will be
reminiscent of the''former metal warehouse building -that was formerly located• on this site,
Size: 49,909s ware feet •
Height 53:;feet; -3-story
Amen_tie"s: Riverfront path improvements with,public connections to;'"D" Streetand along`River ,
u
River Row Apartments
A new 111 unit riverfront a artmeni com lex o b_ etween,' D and "F Streets.. This w
nclud' p ne
developmer ehabilitation and ada tive re us
p
p g use (the one close'sY
t will,i ether e�of an existin wareho
to "F" Street
Size: 111 dwelling. units
9;000 s f Rehab'h"'w
tatedarehouse
Height: 3 stor buildin s b'ptw ry en E and F
een, D °and.E' Streets 4-sto buildin
g Y, , g,,. .. g"s.betwe ;.
Streets, p g .
Amenities: New, ublic access to and'''"alon the River to°a:newpublic open"
4 space area at the°:termi'n'us!o`f `B" Street adjacent to, the"Ricer:
11.
11 Tleater `District Combining Ordinance
A Major feature of the; ro'ect i& 'a 12=.screen cinema A . d hatlhm b-pr,p ondition of the cinema
J have a Theater Distnct Ordinanc p p
p
construction is to The proposed ordinance is e development of cinemas
to .a designated d`area:.., Combining
owntown � being. consderedl<as another item on the.
agenda.
Environmentat-Rev
iew fr,
,the requirements. of the
Pur. _,_ . , Q Y
scant to . '
q California Environmental' . calif Act (CEQA); ani Initial Study of
potential environmentalnpacts,was prepared. The potential for the following sigmfica it,impacts were
'
identified: the ac/circulafion l cant th t will reduce 1 otential m a rt1 anon measures .have been proposed and �
a ped to by g
Y pP p p cts to less than significant. „In addition, there is
no substantial evidence,,. that supports a fair argument that ;the, project, ,as miti°gated; would have a
ended 'tha
'
p g t' a'' Mitigated Negative
sigmfitant effect, on then envronrrient � ,It is therefore recomm
Declaration be adopted. A Miti"g ation M6nitoring, Report has "also .been prepared.
41
Subsequent Actions if.Projectiis Approved
Certifi'cate;.ofAppropnateness)„ Approval includes review. of".a
Pp t
r :
®
Historic and Cultural -Preservatiron Committee.Review, and
r Irftprov�e-mentTlaris'
m Building Permits
'Ptiblic'Comments
® Nonce NoticePwas{ given as required b,y Goverrimerit' Code Secti'ons.6'58'544' X658,54'.5 and 6585:6
® Letters At the fhi`s report no letters have been received con' u
wntirig o cern g the project. '
3. FINANCIAL:IIVIPACTS;° „
Development Cos"ts: & Tak;I ),crement
The overall project "development cost is ,estimated �at $75,000,000: Thisis in addition' "to Basin Street
Landing, which s curren,tlY
.underconstruction with an estimated value of$20;000;000:
The proposed Owner. Participation Agreement; provides that• the: Petaluma Community "Development
Commission will finance the,.public improvements"associated with the Town Center Project,; `including:
roadway and sidewalk ,construction; track work, s 'gnat. tion;„ sanitary' sewer.„and storm drainage .
facilities-- water utility lines;• underground electrical and” telephone facilities; underground, gas utility .
lines; streetlights; and landscaping and .Irrigation. Additionally, street; ;terminus - `features & "
improvements are:planned at C Street & .1 St Street,
The c n ht=of:wa. im rovements. Th the construction and reconstrue `
only PCDC assistance" for. this protect is the financing of hon-of city
P g -., Y Pp" g ever for .the
The PCDC s rovidin no financial, assistance Whatsoever
r
u el d"e`velo -ed ortions "of this ro eci. The' Petaluma' City Council will be adopting separate
pnvat Y P P P J
findings.of benefit; regarding'the PCDC'9 payments for public improvements in' accordanc"e with Section
33445 of the State's Health and.S'afety Code,
The City of Petaluma/PCDC is currently'desig_riing the infrastructure improvements but will .require the
developer, to constructahe improvements,. The overall PCDC contribution to the project.is as follows:,
®, PCDC=Contribution for Developer Share ofNblic,'Irif istructure: $4.8 IVlih ori' •
s PCDC Coninbutibmfor Cit, $hare„of Public Infrastructure: $2.7'M Ilion'
-
Total Estirnated,;Public Infrastructure Cost” $7.:51VIi•llion
2003PO4DE tCmated .Pro 1 uelopment' Plan is financed by ro pert tax°'increment FY
The ral Business; District Rede. p p y
petty Tax Increment for the CBD 'is: $679,000.. As .a,_result .o'f thusproj`ecf
additional, property tax increment in" excess of'$5;00,000; is anticipated.
.The FY 2003-04:PCDC Budget pr0vi'd'es'"$4.7 million.fortheproJect
4! CONCLUSION:
The City of 'Petaluma and Basin .Street Properties have; the opportunity •to partner in the implementation
of the Petaluma Theater°District Project, therebyxedevelopi_ng and revitalizing a significant portion of
the Central Business District. Without this partnership, th'e pr
oject area will remain 'blighted' ;and
underutilized. p gi p
An Owner Partici ation- A � Bement will rovide "the, assurances:' neves"nary for
$75,000;000 -in new development to occur:
OUTCOMES'6. Ado ton of an OwnerRMANCE Participation,,P rtic at on AU eEMENTS T HAT WILLGIDENTIFY SUCCESS 0- COMPLETION:,.
p " _ _ _ � - p gr ement ,will allow construction on'the project to beg.In in
November.20,03 °and,end on December 1,.2006.. "
7. RECOMMENDATWNN ,
f
It is recommended ,that the PCDC Approve a Resolution L Adopting a Mitigated. Negative Declaration
with the firidmgs' recommended "by the Planning Commission :regarding the Mitigated, Negative
Declaration, and 2.) Approving„an Owner'Participation.Agreement with Basin Street Properties.
Resolution Adop ing a litigated I�legati 'e Declaration
and
Approving aq Owner Participation: Ageerrflent
u
W
ith Hasn Street Properties "
A RESOLUTION OF ' CI I Y OF PETALIJMA GOIVI1VIi1NITY `IiEVE><.®PM
THE:: ENT
PET SSIO A THEA f TIGATED.NEGATIVE'DECL�ARATION FOR THE
C®1VIMISSIONAIDOPT
.AMI
TERQI)ISTRICT PROJECT, ,ADOPTING, E"FINDINGS
RECO1VINiENDED BY ,THE PLANNING COMMISSION REGARDING °THE MITIGATED.
NEGATIVE DECI:ARATION,,AND .APPROVING.AN OWNER PARTICIPATION
AGRE.E'MEN
T WITH BASIN STREET PROPERTIES,
July 8003 on he ,aUel cat ontfor a dehe,Petluma menPlaet an eemenit b s Bnsdid conduct a ublic,,hearing on
g- p
1 „! pp velop gr y a_ n Street Properties, and
11 fy . P . ion, of
ubhc '�meetin on this matter on Jul . '�1�4,2003 wherein .all persons ter due notice, did, cond�uct a
P g y p ons desirin to be.h
WHEREAS,,the Eetaluma Comrnunit Dev.el`o meet Commis eard were heard;
and g
WHEREAS; the Petaluma Coinmunity�Development Commission has"ll ew' d and considered"the
attached a 'regiment " e' contents of the agreem
-,
:Commission to be complete andlCorte h ent and the actions ofahe Planning.
g
et; and,
in - he
WHEREAS,'the: attacfied a eemerit is m t public interest' and is; consistent with the Petaluma
General Plan, the: Central' Petaluma 'S
pecific Plan, the, Central Business District Redevelopment
Plan, and is in compliance. with Article:t'l9.3 of the Petaluma Zoning Ordinance; and
WHEREAS, the Petaluma Community Development Commission finds ,and determines that facts
,es . ducted for the project
w , _Pp
' Declaration a rovedeyiew rhas' been con
state a ove to e true and that an _,environmental r
resulting in a Mitigated Negative„ by; the Petaluma City Council, and
y prepared for the Theater District Project proposaldemonstrated
tud was re ared
h and
ere i . no substantia s a fair ar ment that the: ro ect as conditione
AS an Initial S
that t l evidence that support gu p ,would
d :� ,
have;a sigmf cant effect on the, environments and
W y, p sed and a e ltin fr
identified ,Mitgat on Measures ithave' been propo ed impact ,ed to, g om the protect have been
pP
EREAS by the, a licant.as a condition' of
Ievidencep hat supports a fair argument that the ro'ect as ,conditioned andmti atis nosubstantial
In addition there
m P J ,
g e, would have a,
ro ec
a rova a wr re uce .i
acts °to � ess than significant
gri effect o t; and .
si , r
scant n t e environrnen
WHEREAS the ro ect.,; located y p
? , � p J is not��� ted on a site listed on an Hazardous Waste��S�ite List"com sled by the
,State pursuant to Sectron,65962.5 of the California Government Code, and
WHEREAS, the Petaluma Community Development Commission further finds; with'respect to
the attached agreement;
pthe
property- g tions.prescribed .for, "the
® It is com at with the°land uses'authorzed iri and the re ul
a
zone.in which the realis,located.
® It will not be=detrimental to the public health, .safety.and,general welfare,
® It will promote the orderly development, of propertyor,the preservation of property
values jn- accordancewithxgood land use practice.
®. It will eliminate blight-in the Central Business`District Redevelopient Proj'ec't Area.
o Itwill substantially benefit the Central Business District,RedevelopinentrProject Area,
increasing property tax increment and property values, enhancing the economic v_.,itality
of the`area and creating a vibrant:-24-hour,use of the downtown,;cor_e
Without a development agreey ent and a companion owner participation, agreement
with the.Petaluma'Communit Develo went Commission, the,;proJect would be financially
infeasible; and
WHEREAS; the Planning Commission, City Council .& PCDC have' reviewed the: Initial 'Study and'
considered public comments before final deliberations.on the pr6ject- and
. . - p p
WI'EREAS, a'1Vlitigation Monitoring Program., has been re ared to ensure cornpliance,with;the
adopted mitigation measures, :and
WHEREAS, the record of roceedin s of the decision:on the ro'ect is:avail-ble for°public review of
P g p J
the"City ofPetal uma Planning D.vrsion; City Hall, 11 English Street, Petaluma,,Cahforma, and
ev EIZEe the' the City Council finds :on the`basis ofthe whole record fhaf�ihefe is no, substantial
o- ect will have a si nificanf effect on the en '
P ) _ .. g, _ vironment and the Mitigated
Declaration'reflecis th'e, lead, agency"',,'independent judgment.
NOW, THUEit YOR- E,, BE IT RE'SOL'VED by1he Petaluma Comm ' ity;pevelopment Coimission
hereby-,
tr1�)Pdt 1gD, o1lg.r.ecommended bytle!
'planning Commiss oegardiigtheaMtigatedNe atveDlaanon,
and.
p ies as provided
PR P p sided
2 A roves an Owner Partici anon A Bement with Basm Street Pro ert
gr
in Exhibit, I
Adopted this: l4th,day of July, 2003 by,iH fo;llowirig vote:
Commissioner Ave .No Absent
Glass
Canevaro
Harris
Healy
Moynihan
O'Bnen
Torliatt
•
HIS , OWNER PARTICIPAT MENT
T ( g.
" J ( ctTI at G'RE n A yeement"�) dated as of
2003 "Effe °') ' tered;into b and between'the
Petaluma Community Dev.elopment Commission ("Agen'cy") and',Basin Street
Properfes,.a California corporation("Participant',')'. Agency and Participant are
y, p
heremafter�collectivel referred to as the« Parties Ca italized'terms °used fiereiri"''shall
have thedefinitions set forth in -Article I or as other�uuise� set•forth herein.
RECITALS
A. The,purpose; of this Agreement is to effectuate tfie..Redevelopment Plan
for the Central "Business District Redevelopment Proj ect Area by providing for the
redevelopment,of the Property: Completion of the Proje'ctl,and'.the Improvements
pursuant •to the terms and conditions hereof is in the best it terests'bf City,and Agency and
the health, safety. and welfare�of`ihe `residents:and the�taxpayers ofthe.Project,.Area,and
y
and'is in accord uv
, th the{publc purposes and provisions of applicable state and'
the Cit
local laws.
ado ted an or y eater District: Ordinance which. 1y.14, 2003,..the City has
d nance. of on No adopted, Jul
B. B Resol
p (" h ''.) O, establishes a theater
district in the: City's central !business district, and (ii) prohibits the construction of movie
• ries of„the Theater Distrie . ( finedriri the Ord_inance).
theaters' outside the bounda t �as Se
C. A material iriduc ent to Agency to enter
em g y into this'Agreement is the
agreement by Participant to, develop the Property and, the'Improvements within "the
periods of time; specified, herein and, in„accordance with the,provisions-hereof;, and the
Agency would be. unwilling to enter into this Agreement in the'absence of an enforceable
commitment by Participant to completethe Project and theInprovements in accordance
with such provisions and,withi'n such, time periods.
D:.. Construction of the hnprovements and 'completion of thePro*ect will
assist in he elimination of blaghtin the Project Area, provide addtionalljobs, improve
conditions in the Project Area m accordance with the purpose'
rpo
safety in the Project Area an y p economic and physical,
purposes and goals of the' ”
Redevelopment Plan:
E.. The Agencylhas determined thatthis;Agreement full`filis the requirements"
of the, California Commun'i'ty Redevelopment Law and .the Agency's rules goernng,
yp p y owners;'"and that this Agreement; ;'including witho&it limitation,
participation b ro ;ert
the Pro ert are the _Improvements ,and development.of
p y hereof with the provisions p g..
e rovisions re atin
to, construction o of the Redevelopment Plan and.,each of its
a hcable ele consistent p
Pp ments, .
Participant is the owner in fee or has -the contractual nghi to obtain fee
ownership of'the Property, which is located within the,Project Area.
City of Petaluma 2
7/7/2003
t3
I
G. On May,21,2001, by Resolution N6.200411103 N C.S., the, Agency
certified an,Frivironmental Impact Report ("EIRZ') for the Redevelopment Plan, and on
June 2, 2003;. by Resoluti'on,No.2003-.103, the City Council cerfified an _EIR for the
Specific Plan. Byresolution adopted..on July,ld,.2003, theCity'Councl and,Ageney.
certified u Neg at ve Declaration for the Project. Agency and City have approved.
development. of the Project; conditioned"uponParticpant''s compliance; with certain,
conditions Proyal ("Conditions: of Awiibit Cx
.attached herto.
B The City -
_* of Petaluma and Part cip.a;D
ant are,entenng intoevelopment
.
Agreement relative to` the, development of thi's,.Project. This the interifion. ofthe Parties
;hereto that. the Development,Agreeinent.and,this OPA be administered'in a manner, .
consistent with .each other:
-NOW;'T'HEREFORE, in consideration of the mutual covenants contained;hereih•
and good and valuable. consideration the receipt and; suff ciency of which are hereby
acknow..ledged,. the :Parties agree as follows:
ARTICLE I DEFINITIONS.
�$eption,1- Definitions,
1 'l Reserved; '
1'.2 Reserved.,
1..3 City" means the' City of`Petaluma, California, a;munr'cipal:corporation.
1.4 "_Cer:.tifica"te,of Completion"'is defined in Section°3.S,lereo£
1.5:. ``Community Redevelopment'L,aw" means California Health-and,S11 afety
Code, Section 33000 •et seq.
L6. "Conditiousof.ApprovAl means those cenditions of approval for the Project,
adopted 'by City and Iset forth, in the Development Agreement.
1,:7 "Construction Plans" is defined in •Section 3'2 hereof.
1:8 "E'fiective Date' means the date;�first written"above; which shall be the date
upon which .this Agreement"isz approved by,the Agency.
1.9' "Environmental Law" means any'federO, state or local Statute, ordinance, '
rude; regulation;, order,,coriserit,decree, judgment or'common law doctrine, and
provisions and conditions of permits, licenses' and "other operating;
authon'zat ons regulating," or relaii n -gr to or �im P posing l ability.or�sfandaids° of
city,of PdWurna 3
7/7/2003
•
l
0
6 .. of •.. Ike.
conduct concerning (i) pollution or�pro 'c "ton of the>environment; :including
natural resources, (ii) exposure Sof persons, including; employees and agents, to
Hazardous Materials or other products,q:rawxmatenals, cheniicals.or,other
bstarnee p
su * es, (iii);;protection .of the ' ublic.health or welfare from the effects of
by=products, wastes, emissions, discharges or releaseswof chemical -substances
or, Hazardous Materials from 'industrial or commercial activities; or (iv)
regulation of the manufacture, use or introduction into, commerce of chemical
substances, including without limitation,
their manufacture, formulation,
labeling;,distribution.; transportation, handling,"storage and"'disposal.
L l o "Haadeu aW'mens substance, material or waste which is or
becomes aced o subject
liability, response:obligations or
standards of conduct-'und'erany Environrnentallaw,, and includes without
limitation (i) petroleum or ;oil 'or gas or any direct or indirect product or by-
product thereof, (ii) asbestos and' any matenal'eontainirig asbestos; (iii) any
substance; inaterial ,orwaste regulated by, listed'(directly or..'by reference) as a
"hazardous substance;" "hazardous material, "hazardous waste;" "toxic
waste," "pollutant," "toxic pollutant," or "toxic,substances in, or similarly
identified as hazardous to human health or the environme'nt;in or pursuant to
(A)' the Comprehensive Environmental Response; Compensation and Liability
Act, 42 U:S C.YSectio.n,9601`: et,seq,, (B').the Hazardous Materials
Transportation Act, 49 U.S.C. Section 5101, etseq , (C)'the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 ets h
eq., (D),the e Clean Water
U.S.C. ection.;1251•et seq, (E) the Water Pollutio C;33
Act, 33 U.S.C.,.S1317
nontrol Act
a ', .(F) the,.Clean AirAct,: 42: U.S.C.,, Sectionr7901, et seq.,
or (G) applicable state or local law; (iv) any substance;; material or waste
which is defined as such or,regulated.by-any "Superfund" or"Superlien" law
or Y
m t nal chem ental 'Law; or (v); any or other hazardous toxic substance,,
al, waste or pollutant identified as. hazardous or toxic and
g y other federal state,or local environmental laws; including
without limitati an
re
regulated under ,
' on, asbestos, polychlorinated biphenyl's, petroleum, natural gas
and synthetic fuel products and byproducts.
Reserved.
"Improvements" means collectively the Public Improvements and the
s"tructures'`to be constructed on the Property pursuant to the .,Masfer Plan and
the Coriditions.�of Approval'.
' Master;Plan".means Participant's. master plan for development of the
Proj:ec . 4s apprgved by the Agency and. City by approval of:the Development
Agreement. The;plans comprising the Master Plan are listedin Exhibit -D.
" p _ ' means Basin';Street Properties, a California coiporation, and its
su cessors and' assigns as approved and permitted pursuant to Article V
hereof, � The term "Participant as used herein shall,not include City or
15
,Agency; should. either become Part'icipaint',s. successor;, assignee or :transferee „
of the Property, the. Project; ,or ahy;portion "thereof.
L 15 "Pro ect" means the develo rnent `of the Pro ert and the 'des>
j p P y gn
development and;installation of,the Improvements as described Ili 'Section,2_2
hereof and'the Conditions of Approval:.
"Property" means the -real. property;mor..e, particularly described in Exl iliif A
attached hereto:, The Property consists :of the'Cnema Parcel; the Gard ge .
Parcel, the Office Parcel, the Mixed Use, Parcel and; the Apartrnenf -Parcel,
each, as ,described in-ExhibitA and ;depicted on Exhibit B'.
1.,17` "Project Area" means the Centra:1.Business�DistrictRedevelopmerit Project
Area -established by,the Redeve'lopment:Plan.
1'.:1.8 ".Public Improvements"means, the, improvements described in ExhibitE.,
attached. hereto.
1..19 "Redevelopment Plan" me_ ans the'Redeuelopment Plan for the Central'
Business District Redevelopment Projec"t:adopted by the Agencyiand the.City,
by Ordinance No, 1,22 ,,on.'September 2,7,, 1976;: as amended. on November 21,,
1994 by Ordinance No'. 1973, and` by Ordinance No.'2092'on July21,, 1999.
1.20 "Schedule of Development" means the ti n>ing for the complet> on of
construction of'the Project as set forth_m Section.2.4 and Exhibit F.
1'.21 "S, peeifc:Plan":means thea;'Central.Petaluma,SpecificPlan :adopted on.Ju_ne
2, 2003 by City-Council.Resolution 2003.-1'03:
Reserved'..,
ARTICLE II' `.DEVELOPMENT,OF THE PROPERTY
Sectipn 2.1 The Property
Participant hereby represents,. warrants and :covenants ,that'it has the unconditional,
right and ,option to acquire the Property and that art. shall ,become the• fee,owner, of the
`Property°w>;thin thiAy`(30) days following,the Effective Date If Partic pant does not
become the fee owner, of the entire Property within; such time, Agency shall have.themgl t'
to terminate this Agreement upon Wri'tten,hotice to. Participant.
Section 2.2 Scope of Development':.
The. Project,consisis,of..the followings all to be undertaken on the 'Property; n:
accordance`with'the,Master 'Plan and the Condit>ons;of Approval:(i) the design,:
'development. and.construction on the Cinema Parcel of a twelve''screen cinema;complex
' City of Petaluma
7/7/2003 5
I
I
Ait'Deco. rat style>("Canema Protect") (ii)'the d
nd co " architectu ' _ - 'esign,�
!developedlopment a n
.. m an " u y +
deve " struction on the Office f a 5.Q,000. square foot 3-story;office
_1-11'r
) ( ) design,
P
Parcel of a arkm ' a'ra i e ( in at, least; 53 0 off the Garage
bu;<ldin Office Pro ect iii the desi development and construction ori'
g'�g g the Parkin Gara a contain
p � 1. g g) g. _, � -street.
P
arking spaces.m four •leve s of parking over 30,00.0 ,"square, feet of ground floor
commercial space ("Garage Project"); (iv) the design, development and construction -on
the Mixed. Use Parcel of a.mixedFuse proj ect (" Mixedl Used, Project") consisting• of
46,000square feet of�ground floor commercial space 4nd'78 residential amts in two
g ing an .'interior courtyard; °(v) the design, "development arid" construction on
the A artment
iii dm s form
p Parcel ,of a;one'hundred eleven unit apartment•complex°(the "A'partment
•fi• "), ( ) .'gn, development and installation of related landscaping and
Pro eet and' vi..tl a desi
site improvements;:,
Section;2 2.1; Public U •
se o`f Garage.
Rrovided,that Agency Partici ant'.' ursuant to Section_ 2.8 aril E s that
y pays in full the cost,of;theTublil Irn" rovement
Agency_ is obligated to• pay t p p Exhibit E hereof,
P '
ant ' t&,A geney� and;C'ity an irrevocable,nonexclusive easement for
:Partici ant shall gr
1wenty'(20)" years providing for use,by, the
alf no
�ewyer'4hdfi .116
parking
es in
theParking Garage and for,public right, of wyandpedestriantand'vehiu
egress
nrtmrigress
d -rt*' 'exceptthose
portonswich Partici ant,esignatesfozclusive use by commercialand'residential tenant
s
of the'ProJe"ct and theirrespective employesand invitees.
Such easement shall .be
memorialized in anagreement (Eas'ement and Operating Agreement") substantially in
the form'attached hereto as•.Exhibi't "
H. The-Easement�iand Operating Agreement, be
recorded in the official records of -Sonoma County and, shall^ provide for 11 of the
following: (i) Partic p,ant.may designate,up to .1,43 parking, spaces in the'Parkirig Garage
for the exclusive use of residentia
l occupants of •the Project; ,(n) Participant.may issue up
to 171 stickers; to allow commercial tenants of the Project or other project of.Participant
all -da ark` T
or it's' affiliates y p
ing priv> legy s in the Park v nG� da S iii) the Parking Garage
shall operate and be available for,u"se b. .the public se O y -per week from 6:00.'
,a.m.to 2:00 a.m , (iv) Participant; hall, at; Participant's expenseensure that the, Parking
Garage is at tall times maintained iri good condition •arid shall perform allnecessary
repairs, and maintenance, (y) Participantshall'be,solelyresponsible,foi payment of -all
taxes; as ' - py y expenses cessary for the
p sessments nce4nd'securit of the Parking Garage;
ranee em o ee.•and' contractor ex enses, ne
o' eration maintenance
Secti'on;2 2 2.
,Housing Affordability Covenants
p._ „y g that the law ,provides:that,(i°°) not lessIthan 15%.of"the
housing units developed as,p d es
Partici ant, acknowle
g11 le for occu ",anc at an
art of'the Pro'ect shall'be availab p y'.
Affordable Misin Cost or°;an Affordable Rent, as applicable, by persons and families of
Low or'1Vloderate ,Income, and {ii) of that number, not less,, than 40%.(i:e:, 6% of the
Affordable Housing Costw,Affordable Rent b Ver Low -'Income H t
housing'veloped as part 6 the Project) shall be available for occupancya
units e
y y ouseholds. Agency
and"Participant,agreethat the,•affordable housing requirements zre,mo
re -efficiently
Cityof Petaluma 6
7/7/2003
satisfied through payment of an'in' lieu:few equal`to. $Z,400`:00-per,dwelling unit,.
;ant
Partici
p',sh all pay such, fee upon issuance -of budding permits. -
Section. 2 3' ' ,Approval Process.
Partici ant:acknow�led' es ,and, a ' ees• that'ex
p , g gr ecution,ofth s Agreementby Agency
does
not consttuteapproval for the purpose..ofahe issuance of building permits for.'thea
construction ,of the Project, does snot liinit'in anymanner the discretion, of City in such
approval process, ;and does not relieve Participant. from the oblgation-,to obtain •all_
necessary approval's and -permits for.-thescoristruction of ,the Project, including; without-
limitation, the'approvatdf architectural plans,,- the issuance of anycertificates:regarding,
historic) resources required in connection with
the =Project; and the issuance of building°
permits.
Participant shall be solely; responsible for: andwshall pfomptl-y pay when due, 'al'l
customary and;,reasonable fees and charges of.ICity inconnection with obtaining building:.
perni tsand,other approvals, forthe Project,�including;without limitation; those;related-.to
the processing; and .consideration, of amendments, > f `any;, to'the current entitl'ernents, :an
related approvals and permifs, architectural' -re view h_ istoric review; nand any subsequent
approvals for'the Project. orthe;development^of the:Property:
Partic pant;covenants that`itshall: (i) prior to issuance of building permits,'f -,-Ahe
'Project obtain all .necess'ary perinits and approvals which inay ;be required by Agency;,
City, or'any other governmental agen,qy,havingJurisdit,ion,over the construction of the
Project :or the, development of.the'
ropetty, (ii)°complywith,all Cond>ti'ons`—Approval
and other conditions which,may be imposed by Cityn ,connection with the grant of
permits•or approvalsfor the Project, and;(iii)';not commence anyconstructionof the
Project,prior to issuance of buildingpermits.
:Section 2:4 , Time'for Completion, -of "Construction.
Partic Pant§hal1,commertce,construction of the first phase,of,the Project no later
than sixty (60,) days from expiration of,administrative appeals and legal' challenges under
CEQA shall
develop the,ProJect i' .accordance with the°schedule attached.hereto in
Exhibit F, andishall complete construction of the. Project no later,.than the termination of
thisl Agreement,, unless the °terms of anywn'tten agreement: with City, -pr-the, Conditions of
Approval, require an: earlier:or later `comrneineement or completion date, in which°case
commencement or completion of `the Project, shalfbegin accordance with such written
agree"m'ent or Condition of.Approval. If Participant; fails to commence or complete the
J g• g g g. y' g rts option; to
Pro ect in accordance with, the fore oin Age shall have the. ri ht at
terminate this, A reernent.
Section 2.5. ;Cost -,of Construction.
Except` for the cost , o.
'f the',Public, Improvements (which shall be paid bythe'
Agency in a •
g y �ccordance•with Section 2.6),all'rcosts,of.(i) site preparat>�on;;demolition, •
ryof luma
7/71/2003 eta 7. �,
designing, habilita
, re tioncons
, developng,and tructing the Project and (ii) compliance
with the- Conditions of Approval and any other:requirements imposed jh z' onnection'':with
any subsequent approvals for the:development of theProject shall be, borne solely'by
P=articipant and shall' not bean obligation• of the Agency or City.
Section 2.6 Public Improvements:
2.6.1 . Construction Pursuant .to,Scheduled fI6st,dnd"Phasing�Schedule.
Participant shall construct a' ' tall Public Iffi
nd,i the P provements described' it Exhibit E
attached hereto n accordance wit
p ns
designand re are th'e Ian and, •ecifications for such Public The Agency shall
h the schedule set forth therein.
. p . ;p , P p . provements and. shall
pay -for , strucfion"and'"installation in accordance with'the schedule of
the cost of their con
costs set forth in Exhibit"E;'and:p,ursuant to the-procedures; set forth 'in Section 2.6.7,
spec Eying the amount nd usel of the,reWuetst d Rinds, ta�corns ame ment ,of funds
P Agency's, p '
q_ p d by copies ofbills and
Y Y q incurred and such other d'
nvoices� from third parties',for`the�costs ocurnentatiori as
Agency ma 'reasonabl re uiie ',,and upon Agency's. inspection and approval of the work
covered by such. disbursement request:
2.6:2Plan`s:'
and Spec:f cations;': Permits., Agency has obtained or shall
PP p p fgr.the''Publi'c'Improvements from all
obtain.final a rovat,of�the fans ands ecifications
encies
appropriate City departments,and,all other a'"
g •having j;unsdi•ction over such rnat'ters.
Participant shall; priorto. the commencement of construction of `the Public Improvements,
obtairf all p en mationsnecessary for the
construction or�nstal!ation of the Public''Im rovem h is from Cit ,Agency and all offer
P , y, g y they
agencieshavingjunsdictiomover;such matters.Following -final approval of the plans
and specifications, neither Agen11.cy nor. City, •shall require any'ch _ ' g s rto the plans -and
he Pub
specifications or to,thel, dib lic Irnprovernents (including without limitation the scope'or
design,thereof); pro.' however, that, if during the course of.construction• of the•Public
Improvements, public; interest requires-a modification, of-or'a departure from the
previously.approved plans,and specifications (such as m the ca,s of the,discovery of
unknown field conditions); City. and Agency°•shall have the authority to, require such
modifications or oeparture,and to s ecif. the manner
p y'iriwhich the same. is to, be made.
p
2;6J, Standards of.Consiru cable Pa eicipant shall construct the Public
Im rovemensnticompliance with 'all app ' or. local, law's'arid 'regulations and in
,compliance with, the standard's applicable to such Public ,Improvements as established'
pursuant to thi's Agreement:
1'6
related'' ' � ons�u t on of the,P. bl�c�Iindrouemeritslpon�th alpsubmit all contracts
specifications- thereto rEngineer
�- � -with the. plans and
City g' P g s.
p r to, the Cit °`
of ec
or
a royal of the.cost, uaritit. and ualitn of works Partecide des"ign"ee for review and
PP q Y q y pant`shall have the right, and
upon written rIe uest. of City or Agency; shall be- required to submit-to the;City Engineer
for'.review and approval all', change orders to any contract (together with applicable plans
and specifications) ,which ould (i), change the scope of thto.be performed under
.City of Petaluma
7/7/2003
8
I�
such contract, (u) provide f&the usei:of materials different�than.'those dent fied'in''the;
specifications previously, approved by'City, ov(iii) increase the,cost"of the work,to be
per
formed under such, contract,. 'The City Engineer shall provide to•Participant,a written'
approval or, denial of4he contract -or, change order (identrfying the reasons ,therefor)"
within ten (10); days;after. receipt by the City Engineer of thecontract:or requested change
order, •which approval 'shall not be unreasonably withhel'd.• The City',Engineei,s decision,
approving or denying a contract Of'.chariRe order shall be, final provided the'procedurai' '
requirements _set forth,in this Agreernent.have`been followed If any,contract;or change. -
order is not approved by the City.Engine'er within.'such thirty (30) ditpenod it shall_be�'
.deemed to be' reJetted.
16:5 ;Bonds. Prior to,commencement of`construction' df the Public.
Improvements; Part cipant�shalldeliver to Agency'copies°of labor,and materials,and`
performance bonds;issued by,a.reputable insurance company,`licerised to do.business `in
"California Such bonds: shall name Agency as co=obligee,; shall be''in a`form reasonably'
.. satisfactory`to Agency, and shall. be in:fihe, following; amounts:
A: A corporate surety bondytoecure performancYe=a`nd'
r
„ guarant'ee the work; in the amount of $4,800,000 which amount has been :estimated 'to be
one hundred-,percent(100%
(100%), of'the cost of construction and installation°of the,`Publc
Improvements, Wi`ththis security, Participant gu-arantees:,completion ofythe,Tbblic
Improvements -and guarantees° the Public Improvements .against defective workmanship
or'.materials and'.unsatrsfact'orrouements and Mie a period etancoe'thereof bfoA wing the,
one year
completion- of the Public , ; _- p p y gency:
B.', A corporate•surety bond int_he amount of $4;,80;0;000 to.,
guarantee payment to the: contractor, subcontractors,. and persons renting equipment, or
furnishing labor or°maternal to ,the :contractor, subcontractors or Participant m connection'
coon and Installation of the Public Improvements.
with constru . .
.`2 6.5.Y.,;Guaranty.And'W,,arranty. Participant guararitbes that the Public
Improvements shall; be free„from defects in °naaterialor workrrianship and shall perforrri
satisfactorily, fora period of one-year from and iafterthe Agency accepts�the Publico .
Improvements ,as complete:' Participant agrees to correct, repair, or replacef at 'its expense,,
any defects.inthe Public Improvements:
2' 6.5:2 No Waiver ByAgency.. ;Acceptance �of'the whole or any-part°of the
Public' Improvements or payrnent-.`therefor, shall not relieve°the Participant, of 'its
obhgatiori: to fulfill this Agreement as,prescribed;; nor shall; th'e Agency .thereby be
esto ed• from bnn in •an ; aciion,for°dams es' anis e from Part cipant`'.s failure to
PP g,- . g Y g g
complywith, any of the terms and,conditions hereof _
. 22 6.6 Inspections Acceptance,'.'Conveyancejo Cite
.'2.6.6-4, Inspection,, Compliance with Regulations',Trior to Cify's:
acceptane.e.of:_any Public, lmprovernent, the.Public.Ihiprovement:shallbe subject
City of P,etalu'ma 9
7/7/2003
Pubh`Im rovement P. rticgir Y P
to inspection', b the ' pant shall:prdovid'e City withCl a 15as bu>ltance of any
Engineer-,,
O drawings`
or si a nents (b) either Olcondi ibnal lien rel`eas`es from the con licable City
Mar la
requir tractor
performing; the work with respect to 'the Public Improvement in the form required
b %California'Civil,�Code,,S;eciion�3262,, or (i ),evidence sati'sfactory.toAhe City
En meer that all, co and c, all rnainte the Public; Ira "rovement have been fully
aid b Participant;,is of:constiucting � � p
evidence of contra ent; obli' ations of th rde aches r la manties, guaranties or other
g g P g o the.Publc
-Improvement:and anyassigriment thereof (with the; assigns' ents-to .become
effective as of the; date City accepts the Public, Improvement).
2,6.6.12 Acceptarice,. When fully completed, each Public Improvement
shal be
fo111owmacCipt sdre eC t o:f all .re uired docuity iii hmentlation e ro C t"podlicy promptly
g. .'Y� e .p q _ - p de _ that the City
Engineer'has inspected an -0:a 'proved such Public Improvem'e'nt: Documentation
evidencing Participant's offer of dedication or transfer of.any Public Improvement
to City, in a form reasonablay acceptable to City, together with the documentation
described in.S
ectionl 2 6 6.1, shall be delivered to"the City'Enginger prior to'
City's acceptance oT thet Public Improvement. No Public Improv.,ement shall be
accepted unless rt is:ready for use by City or the publfc,`based•,on applicable City
standards;relahng to construction of public. improvements.. Upon acceptance. of a
Public Improvement; Agency shall pay.any balance payable for the Public =
P P E' p' p - , ent hasi =
p provided that the Public' Ira � rovem
the, roved Ians-an
rovernent_ ursuant to��� • x i it E
pp p d p _ifications.
g Y Y Y_ p
structed >n cora Dance with sec
p l'acce t liab>lityor
nor an, other uli�hc ag
ency steal
een con nc. Cit, .. , ,
Neither A e ,
resonsi >1>t
p p yfor any Public Improvement, or, the; maintenance. thereof, until City
has acce te&.f he Public °Improvement pursuant to this S,ection:`
16 7,PaMents.
(a) ProgressPayments.', During.the.oconstruction of the .Public `
Improvements, Participant shall be,entitted to.reques't and receive from Agency;progress
payments as the workais completed,in accordance -with the schedule lisfed in Exhibit E.'
curnen k Any payment request submitte y p shall
be -;properly exe ut d and shall incl entafion °.re tired ant'
O tide ala su ortm docurri d b P•'ir
A eement.or reasonabl re-' uested-b th q - by the
- terms of•tlus, A pp g
1 Y q y e City Engineer. ;•
Ment Request. The r
OReview of Pa City Engineer shall review each
c '
payment "',request and )'foci', Participant in writing within' ten (1.0) business days after
receipt thereof, ,of the:reasons, if any, for the den>al of4all.or�any portion of the request..If
u not accepted within such teia ays, the,,payment request shall he deemed•;rejected.
Partici'ant
p shall have the. right to m
.challenge the deafby submitting further
recei t of" to res y (430) days after
the denial rA resubmittal shall of be deemed a now pa'
p ubinit the a. ent re uest within thin
ocumentarion: and/
" yrrient request. The
• y g all, review any resubmitted payment request; acid -shall, inform Participant
Of Maria er sh
Cit 2of Petaluma 10
Zf
of.his or her; qpgrOval,or denial wihn ten(10 business.daYs after receipt of the
resubmission.
(d) Pa .hent The Agency shall.payto:Participant the amount: of -any
PP P d ym
r_
Sect on aNotwrthstrequest within_thirty(30)� d�ays'after its apptoval pursuant io, this
dmgthe foregoing, Agencyslia'll not'be required to pay, the:amount
requested m any,payment.request:for which a,No' tice of Completion is:,required pursuant:
to Section16.7(e until either.(*) thirty=five ,(35) days: have elapsed since Participant has
filed such Notice of Completion; or (ii) the. contractor performing the work�has prodded'
lien rel`eases:in form acceptable to, the .City.Attorney;, or such contractor.,or the Participant
has provided Cityacid Agency with an indemnity agreement in form acceptable: to 'phe _
City Attorney indemnifying City and Agency.against-th`e claims' bfsubcontractors, or,
material suppliers resulting from their `nonpayment or alleged rionpaym'ent: . .
O p spect: to' any Public Im_ provement or
e
once': of Com let�on With re
portion thereof, as, to which no other work is to be performed under, the contract .pursuant:
to which it was constructed; Participant sha'll,prepare;,and execute a Nofice,of.Completion
in°form acceptable ito, e City Engineer- a& to,* of 'the Public, Improvements toe
Notice of Complet on shall be re tuired-to bee led for Public Imp oove Count=y Nq
qed 'and
q _._;,p vement;,,or portion... -
thereof, unless there is.no other work.to be performed under the contract,pursuant,to ;
which it was constructed
2.6`8; Maximum A encs Pa�nt:.No v ithstandmg anything to the-
contrary contained herein;,Agency's maximum payment to. P•articpant`•forttie
construction and: installation>,of.'the Public Improvements shall,not exceed,$ 4:8 °million.
Notwithstanding the fore or any.otherprovision of this Agreement, the Participant
shall not be:required to<pay for, any, costs: (a) arising dunng,the:course of`construction
from changes',required by the City or Agency pursuant to ;Section 2 6 2;: (b) associated
With the inspectibii,;aiialys s, removal,, remediation, monitoring or any othervuork
concerningunforeseen conditions under.the•surface of the real' propertyowned bythe
City;; including ,but not lim"ted to'hazardous materials; archaeological resources, unknown
utilities, .unknown _nstpuct`ion,debris; .or similar conditions; or (e) m excess ;of the`
maximum amountif;the initial low ual
q," ifiedb`id forNthe Public Improvements exceeds
the maximum,amourit. If any such Costs,would make the total cost,ofthe Public
Improv",ements exceed the Agency's'maximlim. amount, theri.the Participant land, the ;City.
established maximum amount whether theisco e of`the P ithstandirg`the ,
y p
Pub Im
shall meet to determine whether the Cit ;will a for`such;costs°notwprovements will be;.
modifie'to offset the increasedcost, or whether some�other course of`action will ber
followed.:
y
conve the Public Improvements to; the Cit, as 'follows' Improvements Participant shall
Transfer of Ownership of Public
y
(a) °Real Propert�For any Public prover constructed on. real'
property ownedby Participant and to be, transferred to City, following Participant's
submission ofall documentation necessary for .City's accefiance of the;Pubhc Improvement
•`
P p
.City of Petaluma l,1
7/7/2003` Z Z
Partici b'le to .Cit fide.Y cleai of :all onet :y encumbrances except pro' -ert. to a form
Participant shall conve the real ro ert`�to Cit b recordation of an instrument i
acceptable ( p p p y axes and
and ary
governmental as essrents not°yet accrued) Prior to such conveyance `Participant shall
maintainthe Public Improvement in good and.. safe condition and repair.
(b) Public Improvements:,Constructed on Land Owned;by. Cit If a Public
Improvement is constructed.on real property to which City holds, feelitle,or, easement rights,
a,hcense� to, enter the real property for purposes relatedto the "
construction and,maintenanc.'
Participant hereby is granted;
•" ��e (prior to�acquisition�byCityhereunder) of the Public
Improvement: Upon completion of construction' of the'Public' Improvement, City shall
accept and acquire. the-Publc,Improvement from Participant in accordance with the
provisions of Sections, 2.6.6:
(c) Personaf Property.'If any Pub, is l,Irn vement"is' comprised of or
includes personal property,, transfer of the,personal property by Participant to City shall be
accomplished by a bill of sale after acceptance by the -City in;accordance ith Section.2.6.6.
2.6. 10 Audit. The City Engineer or;his or.her designee shalh have the right,
upon,reasonable prior, notice and dunng'normal business hours, to-review'Participant's books
and records ,pertaininglto costsi and expenses incurred,by Participant in constructing, any of
the. Public, Improvements.
Section 2'.'7 Conveyance of
Certain_Land to Participant.,'
y
The Agency agrees' acq uiret from the' City that, certain strip .of land described in
Exhibit G; and to convey°the same'to the �'Participant,at no cost to. the. Participant. Such
land is a portion of the parcel upon:which the Petaluma Fire Station is: currently located;
is not necessary for the.prope"r functioning",of the fire. station„andwill allow the
Participant to construct a larger parking garage an& therebyprovide addi'tional� parking
available; to tliepublic The Agency shall convey the stnp of land„,to the, Participant within
otherwise subject"to a n ht"' y. ,u � t or
thirty (30).days.following the Effective Date b 'means of a lot ]me;ad•,ustmen
P J g _ b' Garage Project w thintfive (5) years fol ow n the Participant
has not.
completed construction of the Ga " g
A
Effective Date.
' Section 2.8 Uacaton,ofi
Certain Streets.,
q y p work wi y g with
effort to, vaca �, (pursuant to existing Ofy`requirements) and convey Cit m a opod
The A enc a reps if re nested b Partici ant to
to the Partici ant, at
by the.Partic`ipant) identified in the Master por such portions thereof a`s,=may b'e spec'i`fied
no cost�,to the.Parti"cipant, ;fhe-public streets
lan as being, intended for vacation;and/or
abandonment..'Upon,such Vacation and/or abandonment to the Participant, such public
streets shall become part of the,Property, and this Agreement shall thereupon °
automatically app'ly1H6ret6.
Ciry
of Petaluma
7/Z/2003
12
Section 2.9 Rights of Access.
In. addition to those rights of access toand'across the Property".to which. the:. °.
Agency and City may be, entitled'by law; employees, or agents of the A'gencyor City shah
have the'right of access to the Property without charge`or fee, at anytime; to ' nspectahe
work..heing per"foriiied,at the Property. The-Amgency or Crty`shall give..°thewParticipant;rtot ce .
of tk,intentto so enter a reasonable,period of`time in advance,�of such entry except in the
case,of an.emergency,-in which..case notice�sliall not,bearequ red) In exert smg;i s nght'of
other activities of the °Partici ant P its or
P
ti ,;Agency.
o rri>iumize interference with thePo erafio
en ,,;,theshall use its best efforts. t
Section, 2.10 Compliance with. Laws.
Participant shal'1 carry out -the: construction,of the ProJect'in conformity with;All:
applicable local, state and federal.4awsand regulations; including all applicable local;;
state and federal .occupational, safet-,.health:and labor' standards.
ARTICLE 1I1 CONSTRUCTION OF PROJECT AND IMPROVEMENTS. .
'Section 3.:1 Construction Pursuant, to. Plans.
Unless;modif'ed by) operation of Section 3.2dance with h alhconstruction of the
Pro ect, and they Improvements -steal l be done in, actor
the Conditions of A royal and e Construction Plans;
J P
pp any' other plans or development; approvals issued by the'. •
_Agency or Citywith respect to the Project or:.the,development of the, Property.
Section:'3;2` Construction. P,laris.
" on documents upon
As used herein 2onstruc'twn Plans mean.�all constructi
which Participant shall rely�in buildirigthe.Project, including but not limited;to those
relate&to;landscaping, parking; and " ublic areas, and'including final architectural
drawings; landscaping; exterior lighfing 4,po signage plans and.,spec fications;
descriptions of materials "to be usedfinal .elevations .and .building plans and
specs itatroris. The Construction ;Plans, shall'be based upon the plans or development
approvals issued by the Agency or Citywith respect. to, the ProJ;ect:or°the developmerif of
the Property, and shall not materially deviate "therefrom without the express written,
consent of Agency and City:.
Section 3.3' Chafe g. in Consiruction.Plans.;
IfPart, ici paa desires, to make any material change in the approved Construction;
Plans, Participant ishall submit the proposed change iriwriting to the Awgency.and Ci"ty-for
their written :approval, which, approval shall not be unreasonably withheld or delayed: -I'f'
the Construction Plans, as modified by any proposed, change, conform,:to .the
requirements Ofthis Agreement: -and any,plans or development approvals issued by
Agency, or City, after the •Effectrve:DAte, Agency and: City; as applicable, shall. approve
Cit dP, wuma. 13 "
7/7/2003 „
th"e change by.riotifyng Participant in writing: Unless such proposed is approved
' r• reviousl. a r City wtliin't�ltion Plans shall. continue,, t med rej'ected: If, refected, the °
by Agency :o roped Construction ( ) y
remain'in full,force;and effect.
p y _ pp _
Any:change: in the Construction.Plans required in `order -to comply with applicable
-codes shall be deemed' approved; so long as such change ,does.nch "substantially nor
g tecture ,desi function use �o'
materially change thearch gri, r., amenities of°the Project as
shown on'the.latest;.approved Construction,. Plans.
Section, 3..4 Progress,ofConstruction.
Partici -ant shall co
,, mmence. the' c Mstruct oii of the Project pursuant to the
Schedule of Development. ''During construction ofthe Project;"Participant shall submit to
the Agency from time to time within ten days following the Agency's re quest' therefor,.
but t more frequently, than mon"thly, a'writte"n p the prdgre"ss of the construction
when and as re uested by the Agency. The report shall b
re ort of
q e n,such farm and detail asi to�
inform the Agency'fully. of the status of construction. .
Until-construct" ii: f the Project has been completed, Participant authorizes the
Agt t assist the Agency in revlebuil'ding inspection :reports and other information at the
A enc to have full access to all'
City wing the actual progress;.of construction. Participant
shall allow the A ene. , to review` T
g y construction documents'`and recordsmairitained by ''r
Participant inthe ordina " tours ry e-bf the construction �as may bdieasonably requested by
the Agency:..
Section 35Certi'ficateof Com letion for Pro'ect.
P J
Promptly after completion'. of construction of the Project and the Improvements in
accordance with.the provisons,ofTthis Agreement and•upon issuance,of'a Certificate of
mst rnent "Certific to of,Com n request of.Participant, the Agency wilLprovide an
Occupancy b 'the C"it and.wntte
( - pletidn") so certifying, provided that; at the time such
certificate is issued all corn oven' ( p
p ct "oi hase'thereof),'iricluding the Public
is of'the P"ro e
Improvement's; have been completed. Such Certificate of Completion shall be
conclusive dant :has sahsfted its obligations=regarding the'°
development'oNhe?foperty'(or phase thereof)'. Without`limrtm'gthe foregoing, the
Partici ant ma.p p
( p g e
"five ha � p '
p y obtain ct ��e., the 'development t of thelCinen�a ParceT�the Gara e Parcel,
the Office Par
p ses o the Pro e
cel; the Mixed Use Parcel :and the Apartment.Parcel) as such phasesi'are
completed
The Certif e'ate of Completion shallrbe in such form as° will.enable it to be
Com1 e ion shall not consfitrecords'of Sbnorna County, California ; The Certificate of
g
p ute evidence of compliance with or satisfaction 'of any
obiigafion of Participant to any holder, of a deed of trust or; mortgage securing money
_ �._
completion under tlie.Califorma Ci 1 Code. _ notice of
loaned,to finance the Pro ect or•an art thereof and shall not be deemed a
City of Petaluma '' "
14
7/7/2003
Z5
Section.3.6
erne tation.ofmitigat-ion Mcl asures,and.Condiiions'of .
lip
;In carrying` out :the construction of'the .Pr' fect; •it shall, be the sole responsibility of
Participant to.'mplement, at its sole cost, and expense;. all Conditions .of Approval: .
Participancacknowled'ges that,-additional .conditions of approval or.m tigation and
:monitoring neasuies'maybe imposed, part of subsequent project approvals•by'the
-Agency or city and. agrees that such additional conditions of approval and/or, mitigation
and monitoring, measures shall govern developmerit'of the -Property and shall-he
"implemented' by Participant:
Section 3.-7 Equal Opportunity.: `
-During the construction;ofthe Troiect-Participant:shallnot,discriminate:on'tl e
basis of race, color,•�.religion, creed,'sex; marital status; ancestry or. nationall origin. n the
" hiring; firing; promoting or demoting;of any person engaged in the construction wpfkand
shall direct i"ts'eontractors and suhcoritractors to refrain frorn'discrirnlnatlon:On' SUCK
basis.:
,Sect`ion,3,:8Prevailing VV age�Reguir.ements..
'To the:extentapplicable:tolhe Project,, Participant= and:.its, subcontractors and,
�
agents .shall com 1 'with California Lab or Code Section, ON et :seq.. and •regulations
g p y
ado ted° ursuant thereto Prevai_lm Wage Laws and
_ g g ) shall be responsible for.carrying
,
out the re uirements;of such rovi'sons•
- q. p
The Public Iin _rovementss to,he' constructed,b. Partici ant under•this A Bement
py p gr
shall., be.:subj`ect to the provisions of ahe Prevailing Wage 'Laws: to the same: extentas if
City. had ,a`warded the contract for th'e construction of It e,,Public Improvements:
Partici" ant shall, and hereby agrees to; unconditionally, mdemnify, reimburse,
defend, protect and hold' harmless Agency, City and theif-respective, elective and
appointive boards, commissions„officers; agents;,attorneys,; consultants and employees;
and,their respective; successors Arid assigns,, from and .aga nst any and all` claim' s;; ,
demands; .suits,'And actions At law .or.in equ tzy; and losses; liabilities, expenses;, penalties;
fines, orders,,, judgments, injunctive or otherrelief, arnd,,costs and, damages of every ,kind,,,
nature and description (including but not limited'to attorneys' fees and. court:costs; with
counsel: reasonably acceptable to Agency and City),, and, administrative, enforcement or
judicial proceedings, whether known o'r. urikriown,,'and wkich •directly 'or indirectly; ;in,
whole or in part, are caused h-- aris- from, or relate •to,,or are, alleged;to b& caused by,,
arise from, or`:relateo, the payin ent,or requirement of payment of prevailing wages ofthe : .
requirementof competitive bidding m'the,construction;of'the P•.roject,Ahe failure-tor.
comphy With statel or federal labor laws,, regulations .or, standards m :connection with
gr g „ut not :limited to ;the Preuailm Wa e, Laws;. or an
g: g y;act o,r
this A eement includm b0”
orilission, of •Agency, City or Pato this Agreementwith respect to the
payment; or requirement of payment. of prevailing wages or the requirement of
City of:Petaluma
is
7/7/20031
competitive bidding; 'whether orInot:anyr insurance polices,,shalt•have:been determinedto
be applicable to any„such clairns,,;demands, suits, actions, losses,'liabtlities, expenses;
penalties, fines; .orders,; udgments,,inj.unctive .or` other xelief, ,c'osts�, ,d"areag � es, or
administrative enforcement or udicialroceedin s.It Is;
j'._ p g further,agreed _ that Agency, and
Cit "do�not `and shallw not;
y l watve�'any rights'against';Participant which they may'have by
reason of "this indernnrt , an
y d'hold' harmless agreement' because of the,acceptance by
Agency or.City, or." Particip”"ant"s deposit with" Agency of'any of the insurance policies
described in -this Agreement:
ARTICLE IV: USE OF THE PROPERTY
r
Section 4.1 Uses'.'
Particiant•coveriants and.;
p agrees,that Participant shall:compI-y`with-all provisions
of eRedevelopment lan'.
all use' the Property solely for purposes authorized in
the SpPlandevto mentPlan;
the Master Plah;andthe Conditions of
Approval. Participant shall comply with all mitigation measures' set .forth in the
Conditions of Approval;
Section 4.2 Obligation to Refrain from,'Discrimination. ,,
Participant, shall not restrict the rental, sale, .lease, `sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, .or` anyportion thereof, on the,bas I is -.of
• race color, religion creed, sex, mantal;status ancestry, or national "original of any
person. Participant•, covenants for itself and all persons •claiming; under or through it ,and
this Agreement is made •and accepted ;upon. and subject to .the conditions that there shall
be no discrimination,�agarnst or segregation of: any person' or,of agroup of persons'on
account of race, color; religion, creed, sex,;marital status; ancestry; or national origin in
the leasing, subleasing,' transferor g, use,; occupancy; tenure or enjoyment of the Property,
or any portion thereof, nor -shall Participant or any personwclaiming, under or'through it
establish or permit. an; 'such ractce or;practices ofdiscrimination or segregation with
p Y P
reference to the selection aOcati6n number,, or� , , occupancy of Tenants ° lessees;
sublessees, subtenants, or uendees, in the property herein transferred. The foregoing
p ,•transferees� under this•A y,eem subcontractingparties;
successors assi s and other
rovisions shall run with the land .be binding upon an
gngr ent and shall remain in effect
in, perpptuity. .
Property; ny port on thereof
for. the sale,, lease,-subea' 8 ;', or other transfer of -the
ora �es or;lease
All de ,
made,or entered into by P pant, its successors or
assigns, shall contain, therein the following language:
(a) ln.Deeds'
"The grantee herein -,covenants by and•for'itself, Its successors:and-assigns; and all
persons; claiming under or through it, that there,shall be no discrimination against
'or'se r gation ofany person or group ofpersons onuof race, color,.
City of Petaluma 16
7/7/2003
2�
religion,` creed, sex, mantal status, ancestry,"or;national origin In the>sale;,lease
sublease, transfer, use; occupancy tenureb`r enjoyr ent.of the•propertyherein " .
conveyed, nor: shall the; grantee or any person claiming. under or through :it
'establish or permit ,any such,practice or practices of. discrimination; or segregation
with:reference to the•sel_ection; locafion, number;, use or occupancyVf tenants;
lessees subtenants . sublessees or vendees in the ro, ert herein conveyed. The..
p p ,y
foregoing, covenants ,shall. run with the land..
(b) :In Lease`s-: „
"The lessee herein covenants, by ,and for itself and. its ,successors: and
_
assigns; and all persons claiming urider.,or through ,it; and this lease is
,.
made and accepted uponand subjectfo the:condit ons that#hereishallbe
no discrimination against or segregation.of'any person or of a group of
persons; on account` of race, color,-religion,,'creed, sex, marital status,
ancestry,.or nationa1.origin in :the leasing; subleasing, transferring, use,
occupancy; tenure nor enjoyment of:the p"roperty herein leased nor shall:, the
lessee or any: person- ,claiming,underlor through it establish or permit any'
such practice or practices;of di'scri'mination or segregation with reference
to the selection, location, number, use�or occupancy. of, fenants; lessees;
sublessees, subtenants, or vendees• in. the• property herein;leased;,"
,(c), in Contracts:
.','The contractor here" in covenantsby,and for°itself and its successors• arid assigns.;
and al_l; persons.�cl`'a r ing under oi- through it, ,and this contract.'is made;and
accepted upon and subject to tlie.,conditions .that `there shall bendiscrimination
against,o"r segregaf_ion of any person, or:of a group of persgns on account of,race,
color; reli'gibn; creed;•sex-, marital status,, ancestry; ovfidiional -'T " :in`the'
Teasing, subleasing; transferring;, use, occupancy, `tenure `or,enj'oyment; of°the "
property herein ,transferred nor, shall he contrattorhor.any person claiming under
or through, it, establish or permit any"such practice or practices, of discrimination or .
segregation with referenceto the selection, location;'number, use oroccupancy of`°
tenants, lessees; sublessees; ,subtenant's; ,or vendees; in theI.property herein
ogog p hall be binding upon.ary subcotractning
c
Parties'scssosassignsand
other transferees under the contract."
Section 4.3 Effect and..Duraf on of.Covenants.
Except as maybe otherwise provided in this Agreement,, all of the terms,
coven ants; agreements or conditions set forth,'in thinAgreemerit'sl all f6main, in effect
.until theA.ermjnaiibhQf the Redevelopment Plan; except for fiepro'visiong of:Sections
18, 4.2,;.81-.J',, 10.1 arid Article V11-which shall continue to remain effective
..
" e
develment Plan,.notwithstandin thoermination ofthis Agreement or'the R' o
City of Petaluma 17
7%7/2003
-2—'
• ARTICLE V: CHANGES IN'PARTICIPANT.
Section .5.1 Changes Only. Pursuant to this. Agreement.
The qualifications; experience, .financal.capacty and expertise of Participant are
of particular concern to the Agency:. Itis because of these"qualifi'cations, experience,
financial capacity and expertise that the Agency has entered into this Agreement. No
voluntary or -'involuntary successor, assignee or transferee of Participant shall acquire any
rights or powers under'this•Agreement, except as expressly provided' herein.
Section 5.2 Transfer by.Participant.
Prior to the issuance by Agencyofthe Certificate of•Completion, Participant shall
not voluntarily or involuntarily make or attemptany total or partial sale; transfer,
conveyance,assignment or'lease ("Transfer") of the whole or any part of the.Property,
the Improvements,�or this, Agreement; without the'pnor written approval of Agency. This
prohibition, shall not be deemed to,prevent the granting of temporary easements or
permits, to facilitate the,development;.,conveyance or dedication of the Property.
After recordation of the Certificate of Completion for the Project, no restriction or
covenant set forth in the Agreement shall affect or prohibit a Transfer except as provided
in this Article V, and,no Agency approval shall be needed' for -a Transfer of the Property "
or -right underlhisAgreement, or'any portions thereof Notwithstanding anything set forth
in this Section, Participant agrees -that it shall comply with the Conditions of Approval
and any applicable: mitigation and monitoring measures in the operation 'of any business
on the Property.
If Participant.proposes a Transfer, the proposed transferee shall have the
qualifications and financial resources necessary and adequate as may be reasonably
determined ,by Agency to -fulfill the obligations undertaken in this Agreement by
Participant. Participant shall submit to Agency for review all instruments and other legal
documents rPosed to effect any such Transfer along with .documentation demonstrating
that the proposed successor, assignee or transferee has such qualifications and financial
res
ources, including but not limited to financial statements of the proposed successor,
assignee; or transferee.,
Approval oflsy g
Y must be, in, writing, No ,proposed,,successor,
assigriee otransferee shall become a participant
under this Agreement without such
written approval. by Agency. Unless a proposed Transfer is ,approved by Agency in
writing within 30 days of receipt of written request by Participani,' it shall be deemed
rejected. Agency retains final discretionary approval of each proposed Transfer;
provided,,howeuer,,Ageneyl6hall not unreasonablywithhold,approval of the Transfer,'if
the proposed',successor, assignee or transferee has the qualifications and financial
resources necessary .and adequate,. as -reasonably determined by Agency, to fulfill the
•
City of Petaluma 18
7/7/2003
terms, conditions, covenants and obligations undertaken in this Agreement by Participant
with respect to the property proposed to be transferred.
All Agency costs, including but not limited to,attorneys' fees, in reviewing
instruments and -other legal documents proposed to effect a Transfer iinder'this
Agreement and in.reviewing the qualifications and. financial resources of a proposed.
successor -,assignee or transferee shall be reimbursed by Participant within ten days
following Agency's deliveryto Participant of a detailed •invoice for such costs.
Section 513 Transferee Subject to All Conditions,of Agreement.
Any transferee, of the Property, or portion thereof:shall;be subject -to all of 'the
Conditions of'Approval. and covenants and restrictions of this Agreement applicable o
such property. Any, such, shall°be b instrument in writing satisfactory to Agency
and in form reco"rdable-among the official records of Sonoma County"And any such
transferee shall expressly assume all of the obligations.of Participant under this
Agreement and all related agreements'pertainng to the property so transferred'"andshall
agree to be subject to all, of the conditions and restrictions.to which Participant is subject.
Section 5.4 Exception to'Prohibition Against Transfer.
Participant mayat any time, without limitation, and without the necessity of
approval from Agency, make a"transfer of the Property or'•any part thereof, or.interest
therein, or rights and obligations. under this Agreement, or portion thereof, to-.- (i) a
subsidiary, affiliate, parent or'other entity which controls, .is 'controlled by, oris under,
common control, with Participant; or (ii) 'a. successor or successors to. Participant by
merger, consolidation, non-bankruptcyreorganization, of government action,. provided
that;the liabilities of Participant; are, assumed by the,•entty surviving or created`by such .
merger, consolidation, reorganization or action.
ARTICLE VI " SECURITY FINANCING AND RIGHTS OF HOLDERS
6.1 No Encumbrances Except for Development, Purposes
Notwithstanding any other provision of this Agreement, mortgages and deeds of
trust, or any other, reasonable; method of security (including assignment of leases or
ground leases to a lender as security for a loan), are permitted to be placed upon the
Property or. the Improvements before the Certificate of'Completon has been issued by
Agency, but only for the ;purpose of securing, loans or funds to be used by Participant= for
the development,and :construction of the. Improvements and any other expenditures
reasonably necessary and appropriate to develop the Property under this Agreement:,
Participant shall,promptly notify.Agency of any mortgage, deed of trust, sale and lease-
back or other financing, conveyance, encumbrance•or lienthat,.has been or will be created
or attached to, the Prop or. the .Improvements. The words "mortgage" and,"deed of
trust" as used'herein 'include' all other, appropriate modes -of f nancing real -estate
acquisition, construction, and.land development.
City,of Petaluma 19
7/7/2003 C
•
•
•
• 6.2 Holder Not Obligated to Construct. .
U]
The holder of any mortgage, deed oftrust or other,securit":interest, authorized by
this Agreement is not obligated to construct or complete any of the Improvements.or to
guarantee such;construction or completion. Nothing in this Agreement shall be deemed
erm <t or authorize to
p any such.holder to devote the'Property or any portion thereof to
any uses;, or to construct; any improvements thereon;` other" than those uses or
improvements provided for or authorized by this -Agreement.
6.3 .:Notice of Default and.Right to Cure.
Whenever Agency pursuant to its,rights, set forth imthis Agreement delivers any
notice or demand to Participant; with respect to the commencement, completion, or
cessation in the'construction of the 'Improvements, 'Agency shall at the same time deliver
to each.holder of record of any mortgage; deed of trust or other security -interest
authorized by this Agreement a copy of such notice or demand'. Each'such-holder'shall
(insofar as the rights of Agencyare concerned) have the right, but.not the obligation, at
its option, within ninety, (90) days 'after the receipt of the notice,, to cure or remedy any
such default or breach and to; add they cost thereof to the security interest` debt, and the lien
on its security interest. A who chooses to exercise its right to cure or remedy a
holder
default or breach shall firstnotifyAgency of its intent to exercise. such right prior to
commencing to cure or remedy -such default or breach. Nothing contained in this
Agreement shall be deemed. to, permit or authorize such holder to"undertake or continue
the construction or complet'ion.of the Improvements (beyond the Yextent necessary to
conserve or protect -'such Improvements or construction already made) without first
having expressly, assumed, i'n writing Participant's ob_ ligations to Agency relating to such
Improvements under this Agreement. The holder in that event must agree to'complete, in
the manner provided in this Agreement, the Improvements and. submit evidence
reasonably satisfactory to Agency that it has the development capability on staff or
retainer and financial capacity -necessary to perform such obligations. Any such holder
properly completing such Improvements pursuant to: this,para-graph -shall. assume all
rights and obligations of.Participant•lunder chi's Agreement and shall be'entitled, upon
written request made, to Agency, to a. Certificate of Completion from Agency.
614, Failure of Holder to Complete Improvements.
'Inany, case where; six (,6) months after default by,Participanf in completion of
construction of the Improvements under this Agreement, the holder of record of any
mortgage, deed,,of trust, or other security interest creating a lien of encumbrance upon the
Property or -'the Improvements, having first exercised, its option to construct, has not,
proceeded diligent] y°with construction, Agency shall be'afforded those rights against
such holder which -it would otherwise have against Participant under. this. Agreement.
6.5 -
Right of Agency to Terminate if Default'By Participant of a Mortgage.
City of Petaluma 20
7/7/2003
J7 1
In the event of a;default or breach by Participant of a mortgage; .deed of trust or
other security instrument prior to issuance of the,, Certificate: of Completion. for the
p p p P
,Improvements,, and'the:.holder has not exercised its o tion to Win Tete the.Imi 'rovements
Agency`may ,terminate this, Agreement ,by writing:
6;'6, Holder to`be Notified.
Participant,.for,"itself, 'its successors and assigns hereby'warrants' and agrees;'that
each. term contained herein dealing; with security financing and rights of holders shall be
either inserted into, the relevant deed of trust or mortgage or acknowledged by the holder
prior to its coming into any security right or.interest in,, the Property or the.Improvernents:.
6.7 Modificationsto Agreement.
Agency shall ft ot"unreasonably' Withhold Rs consent. to modifications,of this
Agreement requested by,Participant's lender, or lenders provided such modifications do
not alter. Agency's,substantive rights and.obligations under this'' Agreement.
6.8 • Estoppel, Certificates.
Either Party shall, at any time;; and from time to time; within thirty (30) days after
receipt of written notice from the.other Party; .execute. and deliver to ,such Party a, written
statement certifying -that, to the,knowledge of the certifying Party: (i) this Agreement is
in full force and effect and a..binding.obligafion of the Parties (i'f such be the,case), (ii)
this,Agreement has not been amended or modified either orally or in;writng,, or if so
amended, identifying the amendments,. and (iii) the requesting, Party isnot in default in
the performance .ofits obligations.'under this Agreement,, or if in,default, describing the
nature and amount of any such defaults.
ARTICLE VII: ENVIRONMENTAL. MATTERS
Section 7.1 ,Hazardous Materials Remediation.., Participant shall not hold
Agency or City responsible for the:cost'of any soil, groundwater or, other environmental
remediation.. or other response,acti'vities., for any Hazardous,. Materials existing or.
Agency pursuant to his.A ree ent ,and.Partici ant shall solei responsible for nl '
occurring on the Pro ertor an portion thereof, or an land conveyed to Partici a
g Y P g P Y p all -,
actions and costs associated with any soil, groundwater or other environmental
remediation or other response activities. required for the development of the'Project, the,
Property, or any portion thereof Upon receipt of any notice regarding the presence,
release or discharge of Hazardou&Materi_als in, on or under the Property or any portion
notice),shall,aand hereb a� ees to tmiel� initiate anddpig entl. ur .� ull
thereof `Partici , ant as. long as Partici ant owns the property which is the sub''ect ofsuch
Y g �. Y g y p sue and complete all.
appropriate response, remediation "and removal actions for the presence; releaseor
discharge of such Hazardous Materials within such deadlines as specified by applicable
Environmental Laws. The provisions of thisection and section 7.2 are not, applicable to
any real; property owned and retained by the City upon which the `Public `Improvements
are constructed.
City of Petaluma 21
7/7/2003
3L
, ,Sectio
n Z♦2. I
Indemnfication.-
Participntt,,shall
y .
and herebyagrees toy. uncondit onal'ly indemnify, reimburse,
defend; protect arida 'old.harrriless..' Agencytand City ,aid their elected ;and appo'itited
P ttotheys, consultants. and employees, and all of
boards commissions officers;, agents : a
their res ective. successors and.assigns, 'from and against any arid:ah ,claims, demands,
orders, judgments, tri unctil' e or o Y,and losses; 1>abilities, expenses,ipenalties, fines,
suits and actions at 1 J
ri e uit
v Cher relief (whetli'er, known.or unknown
'and whether
based on personal injury,' property damage, or contamination of, or adverse effects upon,
the environment onnatural-resource's); nand costs and damages.,.of every'kind;,nature:and
description (including but hot1imite ,to attorneys' fees and
count costs, with counsel
reasonably acre table to A g"d'City) and` any exp°
enses associated with the
investigation, assessment,.monitoring response, removal,,treatment, `aba'tement or
remediation of Hazard ousMaterials, and administrative, enforcement, fiudicial
proceedings. and which directly or indirectly, in whole or in part, rare caused' by, arise
from, or relate to, "or are alleged to be caused by, arise`fiom, or relate to, the presence,
' release or discharge, or,alleged presence ,.,release or discharge, of'any H_azardbus,,
Materials in, on ovunder the Property; or any :portionithereo , or any 1`and conveyed by
Agencyto Participant pursuant to :this Agreement, or the failure to comply with any
Environmental Laws, whether orFriot any, insurance pohc> es shall,have been determined
to be applicable to any such; claims, `demands; suits, actions; losses, liabilities; expenses',
penalties, fines, orders, judgments; �injunetive or other relief; costs;, damages;'or'
administrative, enforcement or judicial proceedings. Itjs further a`gr
eed`lhat Agency'and
City do not, and shall not, waive any rights against°Participant which they may—have by'
reason of this indemnity a_n'd hold, harmless agreement because oft
' � h'e, acceptance. by �'O
Agency, or the deposit with"Agency ;by Participant, bf any`'of the insurance policies
described in this Agreement.,
ARTICLE VIII: RELOCATION
Section 8.1 Relocation.Hold Harmless and. Indemnity Agreement.
Partici
pant. agrees that rt; shall h''ave ahe sole ;and exclusive resporisibility'for
providing any relocation�'assistarice and paying any relocation costs associated
�� with;the
development of the_Property, which may'`be required,by applicable 'fedeial, state or local
laws, rutes and regulations,: Participant shall, and, hereby agrees to, unconditionally
indemnify, reimburse; defend, protect and hold harmless Agency and City.and :their
employeesaand all of e"boards commissions; officers; agents, attorneysconsultants and
elective their res, ective successors and asci
d p gns, from and against any and
co1stsaand damaaes of ever'
r in e uit, and lossgs habi'lities; expenses,
uits:and actions.at',1aw o q y,
g y kind, nature' and description (includin but not imi'ted: to.
' u own,tand wh ch.d rectla or ndirecite n Who enc and City);
or unkn p
a brneys ees a_ n co_ „ y p g y
whether known ,'aN, Y y,. or n art,�are
caused'by,ans`e,frori , or relate toy �or' are alleged to be"caused by, `,anse from, or relate to,
relocation assistance or benefits or any, act oromission of Agency or Participant with
Cit of Petaluma 22
7/7/2003 7j 3
o .
respect: to the provision of relocation assisfance or benefit's in,connection, With this .
Agreement, whether or not any insurance policies `shall Have been, determined to be
• .
applicable to any such claims, demands„ suits actions, losses, liabilities , expenses;, costs .
or .damages Itis further' agreed that Agencyarid City do'not,; and, shall' notwarve ad
rights against Participant which Al eymay have by reason.of this_ indemnity" and "Bold'
harmless agreement,because of the acceptance'by"Agency,; or the; deposit with_Agencyby "
Participant,, of any of the;insurance policies de"scribediathis Agreement:
ARTICLE _ „
IX':, . DEFAiJLTS, RE_M_ IE.S°AND TERMINATION .
Section 9.1 Participants Default ; -
' The following events -shall const tute,:anevent ofdefault-('Tvent.of.lDefaul't");ori'
the�part of Participant.,.
(a) If Participant shall fai°l to%eep, Obsgrvq or perform any of its`coyenanfs
`duties or obligations under this Agreement and,such.default,shall.confinue°for a,period of
thirtyj�( O) days after written; notice thereof "from Agency to -Participant„ or in the case of'a
" default-which,cannot with due'diligence'be cured within thirty(30) days, Partcipanf;faits; ,
to promptly'begin,and diligentl;y.proceed to cure such default�'promptly`affer such notice;,'
(b), The making by Participant ofan iassi gnment for;the benefit :of cred'tors, ;or'
filing byPartic'ipant of a petition: in bankruptcy,or of reorganization under any
bankrupt cy;or'insolvency law;
(C) The appointment ofa receiver or trustee of the property -Of Participant which
;appointment is not vacated or stayed within ninety(90) days after such appointment; or
- (Ay The filing of aapetition in bankruptcy.against Participant or for its,
reorganization under any bankruptcy or;'insolvencylaw wliich°is not di`smissed'.or stayed `•
within r inet 90 da safter �such.filin
y ( ) y ' g'
"
Sects i.5.2; Aaencf s Remedies in the;'Event, of:Default.
If.an Event of Default on'the part of Participant shall .occur and be, continuing
beyond --any applicable cure`period,. then Agency °shall,'have the,follow'ng:rights .and
„ remedies'in addition to•cther rights available to it`under`law or this -Agreement;
(a) Termination: Agency shall .have, the, right �to terminate this Agreement:. If
Agency mak&k such ;election, Agencyshall give written notice to: Participant; and to dny
.
mortgagee entitled to .such notice, specifying the Event of Default;and., stating that:tlis',
„ Agreement shall expire and terminate on the date. specified in "such notice, which sha1`1 be
at least thirty (30) days.after the, givmgo'f,,such notice, and -upon t_he date; sp ' ified,in such,
notice, this Agreement and all rights,ofParticipant,under;tY is Agreement shall expire an.,
terminate..
Cityof P_ t'Wu•ma,: 23 _
7/7/2003.
3 C'
•
' (bon of or�alttem .ted o threatened comm ssiori of ano restrain, by injunction, the
Injunction A enc 1 shall have then ht ,to seek
obta
in a r
iss ud ellen ; �� erfonn Event of D`efaul't and toy
p_
j gment or°orderspecif cally;cornp' ' g p' Mance of anysuch,term or
'provision of this Agreement without, ;in. either"case; bem'g; required to, prove: or' establish
that:Agency does not have• an :adequate remedy -at law. Participant hereby waives the
requirement of any'such proof•and acknowledges that Agency would not;have an
adequate remedy at law, for,.Partici ant's
p commission of an;Event',of,Default hereunder if
such Event of Default was_°voluntary 'the part of Participant and could be prevented or
remedied„
by injunctive relief or,• pecific.performance:
(c) Damages. Agency,shalf be„�entitled to proceed. against Participant for all
direct damages costs and°
expenses aria"ing from Participant's commission of an Event of
Default hereunder and to -recover all such direct damages, ,costs and expenses; including
reasonable attorneys' fees.
Section 9.3 Agency's'Default.
constitute an •ev p g
The following events shall const ent of default on the - ,part] of Agency
(")Event o(Agency Default"):
If Agency';shall. fail to keep, observe'or perform1.. any of its covenants, .duties or
obligations under this Agreement�and such default shall continue:fora period of thirty
(30) days after -written notice thereof.from Participant to Agency, ,or irr the case of a
default which cannot with. due diligence be cured, within tfirty. (3;0) days;,Agency fails to
promptly begin and diligently proceed to cure such default pro mpt,lyafter such notice.
Section 9A ;Partici- ant's";.Remedies in the.Event,of Agency Default.
'If an Event of Agency Default shall occur' acid be continuing beyond any
applicable cure period, then, Participant shall. have the' following rights and remedies in
addition to other rights available toit under law, or this, Agreement°,
of or
attempted or threatened commission o ght•to restrain
y m b and
a Participant shall' -have -the rij. n, the comrriisson
p an Event of Agency Defaultto obtain a
`_
the A e eementdwithout f n either ase, eing required, to pro e ore stabli or provision of
gm ening performan y
gr c
b establish than
Participant does not have an adequate remedy -at IAW. Agency hereby waives,the
re- u>Lre
q ment of any such proof,and acknowledges that Participant would not, have pan
,qdher quate re such- t law for enc;, Default was volunta , on the art, of A enc an
y
�eunder >.f suchwEvent ofA g y g Default
g en y s commission of anrEvent ofp enc g y d
could berevented o
p r remedied by mjunct>ve relief or specific performance.
(b). Notwithstanding anything to the contrary, •containedi herein, in -no event shall
damage,9-be awarded against, City, or Agency upon .the. occurrence of an;,Event of Agency
Default or upon termination of this.Agreement.
Section! 5 R'i'ghts and Remedies are Cumulative:
City!,of Petaluma 24
7/7/2003
35
Except' as otherwise, expressly, stated in this Agreement,. the nghts and" remedies of
.
the Parties are, cumulative ,and the exercise b, either y of one or more of such l,rights
orremedies' shall not, preclude the .e'xercise .by it, at the same• or different tune; ;of any .
other rihts or remeg dies for the'samei or. any other default, bythe other Party.
Section 9.6' • 'Inaction Nota Waiver of Default:
No failure orrdelay by.:e thenParty in.asserting:any'of its'- -his an remedies as to_
any default shall�pot operate as�a waiver-of such default or of any suchrights ;or remedies;,
nor deprive either such,Party of its rights to institute andmamtairi `an.y action, or "
proceeding,' which, it may deem necessarylto protect, �assert,orvnforce any'such rights or.
remedies in:the;same,or.;any..subsequent,default.
Secfi'on 9 ,7 Excuse for'.Nonperformance:.
• Partici ant and�Agency shall be excused fro 1 or
••
to,_ ay anhgati'on
undertakin rovided im this Agreement, except anyp y y sum of money
g pp � obligation.r
under, the, applicable provisions _hereof, in'the. event and for so long as,tY'e performance of
any such obligation is, prevented or d'elayed', retarded, or, hindered by act of God, fire;
earthquake,,.flood; explosion, action,of the elements; war, invasion, insurrection',,not;
mob violence; ,s ab°otage, inabilityao procure ,or general shortage, of labor, equipment,
facilities, matenals ,ortsuppli'es in the, open market; .,failure --of transportation, strikes;, "
locko..uts; Ac.ei,ontof labor unibn"s, conderrination, requisitions laws, orders of governmental,
,milrtary
civet, or°.naval, authority-, or any other;cause;,,whether similar,or-dissimilar to: the
foregoing,:not within the ,gonitr"oI' of the Party claiming -the extension of�time to perform:
The Party cla rriing. such extension sfiall. send written notice of the clai' '' d' extension.{to
the other Partywi"thin thirty (n.) days following the commencement of `the cause, entitling
the Party to the, extension:
ARTIC-L;E X;- ,INpE1V1NITYAND INSURANCE
Section,10:`l, H. old Harmless
,Participant hereby shall indemnify, hold harmless and defend Agency and City,;
their-respective elected and'appointed .boards„ commissions, offieers; ,agents and;
employ, ees (collectively, `-`Indemnified_ Parties") from and against any or all, fosses;.'
expenses, claims, suits, demands,, costs-(including attorneys' fees and expenses of
litigation), damages "and liabilities of every kind (collectively; "CI`aims"), including
without' Iimitation,,,Claiins arising,in;connection,with;anypersonal m�ury, death.'or
property damage, which may arise directly or indirectly as a result of any action or,
inaction, error., negligent or wrongful•act :or omission, breach'of warranty, willful_„
misconduct or fraudulent misrepresentation of _Partic paht"' or Part>eipanf s contractors;
subcontractors; agents or. employees i'n connecfion. with ,the construction, improvement;
operation or,:main"tenanceof the Project, 'the: Inprovernents, or'any p;ait'thereof
Participant shall defend' Agency, City, and their elected. and ointed' boards,PP,
;
•
City of Petalum_ a ' 25 • " "
7%7/2003
commissions, officers,'agerits and employees from any suits or actions at law or in equity
• for damages caused, or alleged to have been caused, by reason of Participant's
performance of its rights and obligations, under this Agreement.
Section 10.2 Liability, and Workers Compensation Insurance
O Participant
through the P rticip of shall maintain in. force during the construction of the Project and
the Certificate of Completion, comprehensive general liability
and property damage insurances including personal injury, contractua_l', and'owned and
non=owned automobile insurance with such coverage: and limits as may, be. reasonably
requested by Agency and; City from time to time, but: in no event for less than the sum of
three
million
dollltrP($3,0.00,000),per occurrence combined single limit. During the term.
gr articipant shall maintain Worker's Compensation insurance for all
persons employed' by Participant for work at the Project site; Participant shall require
each contractor and subcontractor similarly io provide Worker's Compensation insurance
for its respective employees. Participant agrees to indemnify the City and the Agency for
any damage resulting from Participant's failure; to maintain or require any such insurance.
(b) Liability insurance-policies:shall name Agency and City as additional
insureds. An endorsement'shall be provided which states'the coverage is primary
insurance and that no other insurance held by Agency or City will be called upon to
contribute to a loss under this�cove'rage. . , I a'
• (c) Participant shall furnish to the Agency duplicate originals, or certificates
evidencing such insurance coverage or coverages prior to commencement of, construction
(or any work related thereto) on the Property, but in no event later than thirty (30) days
after the Effective Date,, and such certificate(s) shall provide that such insurance 'coverage
will not be canceled or reduced without at least thirty (30) days' ,prior written notice to
Agency.
•
(d) If such coverage is canceled or reduced, Participant shall, within fifteen (15)
days after receipt of rioticeof such cancellation or reduction in.,coverage; but in no -event
later than the effective date°of cancellation or reduction, file with Agency and City a
certificate e has been,reinstated or;provided through
another insurance
t� an p '
g at the required. insuranc
ance co p y or companies.. Upon failure>to so file such certificate,
..
Agency or, City may, without further notice and at its option, procure such insurance
coverage at Participant's:'expense, "and Participant shall promptly: reimburse Agency, or .
City`for such expense upon receipt of billing from Agencyor City.
(e)' The insurance policies specified in this Sect'
Section shall be provided by a
reputable company or companies, licensed to do business in California..
ARTICLE XI: GENERAL PROVISIONS
City of Petaluma 26
7/7/2003 1_
Section 11:1 Notices.
Except as otherwise specified in this Agreements all notices to be sentpursuant. to -
this ,Agreement shall be; made in writing,, and sent to the Parties at their respective,
addresses. specified ,below •orto such other.address as, a Party may designate by written
notice delivered to the other parties in accordance with this Section. All such not
shall be sent by;
(i) personal delivery, in which case.notice is effective upon delivery;
(ii) certifiedor registered mail, retum, . re ceipt`reauested, in,whlch.caSe
notice shall be deemed delivered on receipt if deliveryis confirmed by a return
receipt;.'
(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account; in which case notice is effective on delivery, if
delivery is ,confirmed bythe delivery service;
(iv) facsimile transmission,in.whch ease notice shall be.deemed delivered
upon, transmittal, provided that (a) a duplicate copy of the notice, is promptly
delivered by first' -class or certified mail or by overnight delivery, or.. (b), a
transmission repotis generated reflecting. the -accurate transmission thereof, Any
notice given by facsimile shall be considered- to have been received on the next
business day if it is received after 5:00p.m. recipient's time or on a_nonbusiness
day.
AGENCY: Petaluma Comm unitybevelopment'Commiss_i'on
27 Howard Street
Petaluma. California 949.52
Attn: Michael Bierman
Telephone; 707-778-4345
Facsimile: 707=778-4419
With.,a copy`to: Petaluma Cornmunity Development .Commission
27 Howard Street
Petaluma, California 9.4952
Attn: Paul Marangella
Telephone: 707-778-4581
Facsimile: 707-77$=45.86
-PARTICIPANT:
Basin Street Properties
1318 Redwood Way; Suite 140
Petaluma, California 94954
Attn: Matthew T. White
Telephone; (707) `7944477
Facsimile: (707) 795-6283
City of Petaluma 27
7/7/2003
is
is
With a copy to:
Law Offices of Paul .A. Andronico
25. Gregory Drive
Fairfax, "CA 94930
Telephone: (415) 456-3166
Facsimile; (415) 329-1767
Section 11.2 Conflicts of Interest.
No member, official or employee of the Agency shall, have any director indirect
interest in.this Agreement, nor -participate in; any decision relating to this Agreement
which is prohibited by law.
Section 11.3 Warrant} Against Payment of Consideration for Agreement.
Participant warrants that it has not paid or given, and will not pay or give, to -any
third party, any money or;other consideration for obtaining this Agreement, other than
normal costs of conducting business and costs of professional services such as architects,
engineers and attorneys.
Section l l.4 Norfli'abi'lity of Agency and City "Officials.
• No. member, official or employee of the Agehcy'or City shall personally be liable
to Participant, or any assignee or successor of Participant,,in the event of any default.or
breach by the Agency—or, for any amount which may become due to. Participant or its
successors or on any obligation under, the terms of this Agreement.
Section 11.5. Parties Not Co -Venturers; No Third -Party Beneficiaries
No provision of the Agreement nor any act of the City -or the Agency shall be
deemed or construed' to.establish the Parties as partners',. co -venturers, or principal and
agent with one another or to create any relationship of third -party beneficiary.
Section 11.6 Litigation.
In the event. of any dispute between the Parties hereto -arising out of this
Agreement the. non -prevailing party agrees to pay to'the prevailing party all sums paid or
incurred by the prevailing party as reasonable costs and expenses and incurred in the
legal proceedings, including but.not limited to reasonable attorneys' fees:.
Section 11:7 . Severability.
If any term, provision, covenant or condition of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall continue in full force and effect unless the rights and obligations of the
City of Petaluma 28
7/7/2003
Parties have been materially altered or abridged by such invalidation, voiding or
unenforceability. If as q.resuli of any final judgment this Agreement or any other
required approvals under this Agreement are determined to be invalid, the Parties agree to
cooperate to :amend this Agreemerit and other -necessary documents in- order `to
accomplish ;the basic;purposes and intent of this Agreement.
Section 11.8 Counterparts; Entire Agreement, Captions'.
This.Agreement may be executed -in multiple.counterparts, each of which shall be
an original and all of which together shall be, deemed to be one agreement. This
Agreement,. together with. all Exhibits attached,hereto, constitutes the, entire agreement;,of
the Parties with respect to, the subject matter hereof and supersedes all prior negotiations
or agreements between the Parties with respect thereto. The captions of they sections and
articles of this Agreement are for.convenience only and are not intended to affect the
interpretation or. construction of the, provisions,hereof,
Section 11.9 Amendments, Waivers,
This. Agreement may amended only by a written instrument executed by the
Parties. No waiver of any provision of -this Agreement shall constitute or be deemed a
waiver of any other- provision, whether or not similar, nor shall any waiver' constitute a
confinuing waiver.. No waiver shall be, binding' unless it is executed in writing by the
Party making the waiver.
Section 11:10 Governing Law; Venue. .
The laws of the State of California shall govern the interpretation and
enforcement 'of this Agreement. Any'action io enforce or interpret this Agreement "shall
be filed in the Superior.CourtofSonoma County, California.
Section 11-.11 - Exhibits.
Exhibits A through J attached hereto, are incorporated herein by this reference.
Section I L 12 Recordation; Further Assurances.
Agency is authorized to recordthis Agreement and any amendments thereto in the
official records of Sonoma County, California. The Parties. shall execute, acknowledge
and deliver to the other such other documents and instruments, and take ,such other
actions, as may be reasonably�necessary'to carry out the intent of this Agreement.
IN WITNESS' WHEREOF, the Parties hereto'have entered into this Agreement as
of the day and year first above written.
is
City of Petaluma 29
7/7/2003 [ j
1p
92
'A heater.. are
(Rose'Parcel)
Legal°escrip,ti'b:n
OLD REPUBLIC TITLE COMPANY
ORD.ERNO. 0812000596 -JJ
','&nd, Ire rr6d to in this Report issituated ih the.County,of- Sonoma; City,,ot Petaiuma,,,
of Uifdmia, and is described asJollow.s:
PARCEL ONE:
LOT I S NUMBERED 107 and 1,Q8, "as, �shdwn -upon the,�mip entitled, !'Map of the City
bfi lPet'aluma, Sonoma County,,;,. a Californ3.i.,, survey: under, the 'instructions from the
Board of Trustees of said City: And thee U. S1.' Surveyor G'erieral by Jas. T.
Strat�t6n, U.S. Dep. 'Surveyor:; December 1865, filedin the ,office of the County
Recorder of Sonoma County,, Ca_ i1ornla, on December 30, 1865.1,
EXCEPTING THEREFROM that,portion conveyed ey by deed- -recorded March 8, 1546 under
Recorder Is ''Serial No. C` 124791 in Book Z84; o 'offi'cial Records, '.Page 171 Sonoma
County Records.
ALSO EXCEPTING THEREFROM °that porti on conveyed by, deed recorded March 3, 1952
under. Recorder's Serial No,. D-,,61694, Book 1111
of Official .Records, Page 390,
Sonoma.'County Records'.
I A.P. No. 008-066-006
PARCELTWO:
07,103, as shown on the map of Stratton's map of the City of Petaluma.
A.P. No. 00s-066-003
PARCEL THREE:
BEING a- portion •of..Lots, 102 and fbl' and all of Lot' 166, 'as said. lots are•
delineated on Stratto'n"s Map of, the City 'of' Petaluma and more particularly.
described as follows:
BEGINNING at an iron -pin driven on the Northeastekly line
I I 11 ' 1 .1 of t� Thi -rd' Street, at a
P oint markihq th,e co,mm'on" corner to Lots 103 and 106 of, .'s
Aid, Stratton's Map,..
poi,
THENCE�'�rom' the said �"`n -between
"o nning and along the common ldt line,
to an iron' pin
Lot 10J and :Lots IUG' and- 1,0'2:'Nbr�th, 250" 4:71 3�11 Est, 2� 0�6,
dti7err on t�he So'uthwesterly I 1-ineof Second Strb eet-
aand saidf pin 'marking :the
common corner toL,Lotg! i,02 And along- said, Second 'S North '640 02 1
West 69.5, fe�et to*"At�-irbn pin;. thence leaving said Second Street, South. 250 561
West 120'.0 feet to,;,an iron. pin; thende
South 6,40 02' East 18.0,0 feet to an iron
pin,thence.:'South 286 5`6` West
es -t' 80.0 feet to an iron pin -driven on, the
Northeasterly 'line of,Thi,r'd'St:ree tL; thence along Third Street South 6411 02' East
-
52.0 feet to the "Ipc�i' t of beginning.
P. No. :0,08-066'-0 0`
,4
S Page— 3 of 8 Pa es
PRT 3157-C
OLD•REPUBLI ; TITLE; COMPANY
ORDER N'O. 061`200;0596 -:JJ
PARCEL' FOUR::,
,BEING a portion °of Lot' 102; according tb' the 'Jas . T Stratton Map <of the City of..
-Petaluma, as filed for record 'December `30, .,1865 and particularly descr -bed as
follows:
BEGINNING•.,a't a 1.' 2 steel •
pin marking the''Nor,thwes.t corner of',';Lot .102 thencet-
along, 'the'Souther'l"y line of Second Street',. S. 64.0 0,4', 3/
E. X82 o,o,, eet -to 'a, 4'
pipe at tfies Northwest :corner of the CarlE;; Peterson ..lot described ,in. the deed..a .N
recorded in Book :684. df Official Records;, 'Page. 17,1'>, Sonoma County ,Records;
thence 'Southerly; parallel to the Easterly d: